Nine out of ten cases filed in the courts of the United States settle before trial. Few of those cases
settle prior to completion of discovery. The end result of these two facts is that the bulk of American litigation is not so much who does best in trial but who does best in the discovery procedures available for the parties.
Discovery, as discussed in our article on American Litigation, is unique to courts in the United States and has developed over the past sixty years into a complex series of rights and procedures that allow a party to vigorously investigate the facts and evidence pertaining to the case.
To a party who expects to file suit and appear in Court before a jury and be arguing the matter in a few months, the years of discovery comes as both a shock and, at times, a disappointment, since the victories and defeats in discovery are often far more subtle and the usual result…a settlement in a judge’s chambers or before a mediator, far less dramatic than a verdict rendered in open court.
But two over arching facts lead to the result that discovery is the great decider of most cases:
First, intelligent and experienced counsel can often make excellent predictions of the likely result of a trial once discovery is completed and the evidence is analyzed and thus create reasonable settlement and,
Second, trials are remarkably expensive procedures, often costing tens or even hundreds of thousands of dollars to perform, thus there is a strong economic incentive to settle before taking a chance on the outcome of trial.
Of course, some cases are subject to facts that truly cannot be resolved in discovery or emotions that are so intense that the catharsis of a trial is required. Some cases have counsel too inexperienced or ego oriented to realistically review the evidence or clients who are too angry or upset to objectively determine the cost benefit aspect of the litigation. Some cases have too many parties with too many agendas involved to obtain an appropriate settlement. Those cases will go to trial.
But the usual cases will settle after intensive (and expensive) discovery is concluded, usually a few months before the actual trial, sometimes literally on the steps of the court house or in the first few days of trial if parties are willing to push the settlement envelope as far as they can.
It is arbitration that sees far more “trials” (called hearings in arbitration) since there is little discovery and the hearing is relatively inexpensive compared to the court trial. Oddly, the attorneys who specialize in arbitration often have more “trial” experience than the attorneys who do court litigations due to the ratio of settlements. One arbitrator commented that the average qualified litigator does more arbitrations than court trials for that simple reason.
Few clients and, indeed, few law schools recognize that the skills, strategy and maneuvering of discovery have become the most critical requirements of the typical American litigation. It is vital when planning the case dynamics to understand the basics and opportunities available in the discovery process to maximize the chance for a good outcome.
That is the thrust of this article.
THE BASIC TOOLS:
Discovery is the process by which a party in a law suit is allowed to investigate the facts of the case. The legal system gives tremendous power to a party, via counsel, to obtain that evidence from the other party, without direct court involvement. The basic tools are:
INTERROGATORIES: These are written questions served on a party which must be answered in writing under oath. Often they are “contention” interrogatories which ask a party to state each fact upon which a particular contention in the pleading is based, giving names and addresses of witnesses. Such standard cases as personal injury cases have form interrogatories which are served upon a party and simply have boxes checked by the propounding party indicating what questions are being asked.
Most complex litigation, such as business or probate disputes, require sets of special interrogatories which ask questions particularly related to the facts of the case, and can often require many hours to answer correctly.
Interrogatories, as the rest of the tools of discovery, allow the answers to be utilized in court and in impeaching later answers that conflict. A typical approach is to serve a party with large numbers of interrogatories, wait several months, then depose the party and use the interrogatory answers, often forgotten by the witness, to confuse or impeach the witness.
The problem with interrogatories is that the questions in writing are often easily evaded by claiming confusion as to the scope or meaning of the question. Often very long definitions of terms are included in the interrogatories but a clever party can still seek to evade giving clear answers. Thus, depositions are considered a much more effective means of discovery since follow up questions are propounded in that forum.
REQUEST FOR PRODUCTION OF DOCUMENTS: This method of discovery requires a party (if noticed) or a witness (if served with a subpoena) to either produce documents at a locale for copying or to make more voluminous documents available at a suitable location for copying. This task is normally accomplished before depositions or concurrent with them so that the witness can be examined under oath as to the history and meaning of the documents produced.
REQUESTS FOR ADMISSIONS: This device allows a party to demand of another party to either admit or deny a key fact as to the case. If denied and later proven true, the party receiving the denial can ask the court for the cost of proving that point. These are powerful tools to limit the matters really in dispute and are often used with contention interrogatories so that any fact not admitted is immediately confronted with an interrogatory asking on what evidence one based one’s denial.
REQUEST TO INSPECT THINGS OR PREMISES: At times a locale or an object must be physically inspected and a party has a right to do so and to have its experts examine it as required. This normally does not allow any testing of the object or locale absent court order, but can if that evidence is required and the object or locale will not be permanently altered or harmed.
DEPOSITIONS: This is the oral examination of a witness under oath with a transcript and often videotaped, conducted by legal counsel. The answers can be used in court to impeach a witness who changes his or her testimony or to establish certain facts. Such transcripts can also be used for law and motion matters, such as motions to dismiss all or part of a case, or to obtain summary judgment.
Parties must appear to be deposed upon receiving a Notice of Deposition. Witnesses who are not parties can be subpoenaed in using a form created by the attorney.
Usually all experts designated by a party as likely to testify are also subject to depositions and these can be the most expensive depositions in the case since the witness often requires the party hiring him or her to pay their hourly rate for the deposition. A demand for a list of experts is normally exchanged before trial in time for each party to have a chance to depose likely witnesses.
Most attorneys consider depositions at the most important tool in their arsenal. Since the witness can be examined at length under oath, and all relevant matters can be explored and evasions pursued, it is fair to say that a good deposition can often win or lose a case. Recall that if the witness alters his or her answer at trial, the transcript from the deposition can be used to impeach the witness before the judge and jury with devastating results.
Preparing to defend a client in a deposition is as time consuming and critical as taking a deposition. Put simply, anything that helps your client derived from his or her own deposition can not be entered into evidence since it is self serving hearsay. Anything that hurts the client can be used to impeach. Thus, the task of the client being deposed is to answer truthfully but to volunteer as little as possible, saving the full explanation of the position for trial.
Useful articles to understand the dynamics of depositions can be found in Depositions in American Litigation and Conducting Depositions-Why It Isn’t Like Perry Mason. While those two articles discuss the particular witness tactics useful to “survive” a deposition, the tactical place of these tools in a case overall is a broader issue.
RATIONALES FOR THE USUAL DISCOVERY FIGHTS
As discussed in our article on Burdensome Discovery, it is common for a party or witness to be upset as to the amount of time and money that is required to fully answer the discovery demanded. This article, however, shall not dwell on the various protective orders a besieged party or witness can seek to impose to avoid such trouble and expense but, instead, shall concentrate on the underlying tactical considerations that make up the usual discovery fights seen at bar.
CONDUCTING THE SEARCH AND RESISTING THE SEARCH
It is axiomatic that a good lawyer will seek to hide or at least not volunteer information about the weaknesses in his or her case and will seek to discover the weaknesses in the opponent’s case. Lawyers, subject to the Code of Ethics, are not after truth…they are seeking to advocate for their clients. Thus any lawyer will seek to make it difficult for the other counsel to discover facts or evidence that will hurt the case or help the opponent.
This requires any attorney to be aggressive in both protecting information and seeking same. This writer well remembers a deposition in which the opposing attorney was so upset with the client’s sarcastic responses that he forgot to ask the most basic question…did my client receive a letter…and spluttered on for hours arguing with the client and ending the deposition in a huff. This writer did not remind the opposing counsel to ask the question and opposing counsel never discovered that that simple question could have gutted half our case. Put simply, he erred in his discovery process by becoming distracted by emotion.
A good attorney will carefully script out all questions that are relevant before the deposition to make sure such errors are not committed and that the give and take of a heated deposition do not cloud the mind and eliminate the careful and complete examination. It is to be expected that opposing counsel may throw some scenes or make some objections hoping to evade and delay discovery that may be harmful and the true professional ignores such nonsense and continues with the examination. The same tactics apply to interrogatories and production of documents. A common trick is to hide a vital document inside a stack of five hundred pages and produce it in that form. Only the most careful opponent will go through the entire stack and discover the document that may make the difference between winning and losing.
It is not the task of your opponent to volunteer information that assists your case. It is your task to find it out and to resist (ethically) providing information that helps the opponent’s case. As one experienced attorney once told this writer, more cases are lost by failing to ask the right question than are won by discovering the key document.
THE MEANEST DOG IN THE JUNK YARD
Discovery is also a useful place to demonstrate toughness and aggressiveness which may intimidate the opponent or make the case so expensive that the opponent loses heart. See our article Buying Justice for the economics that may apply. A party with a large litigation budget can use extensive and expensive discovery to both drain the resources of the opponent and delay the trial date.
Such discovery is often called “scorched earth” and is frowned upon by the Courts but is seldom effectively restricted by the Judge. The usual countervailing force is that such discovery is expensive for all parties. If only one party is well funded, however, that equalizing force does not work.
Quite often inexperienced or incompetent counsel will simply plod along a discovery path, not honing it to the facts at bar. Large firms often have a set pattern of discovery that they inevitably apply regardless of the case or the economics involved. Insurance defense firms are famous for standard discovery process that is expensive for the client, but relatively easy work for the attorneys who bill by the hour.
The problem with inept counsel is that questions or interrogatories that are improper and objectionable may end up costing thousands of dollars to contest before the judge because counsel is simply too ignorant to ask the correct question. While the court can award sanctions for inappropriate discovery, few courts are willing to do so since they do not want to have a chilling effect on full discovery, and awards of attorneys fees seldom fully compensate the party for the cost of bringing the motion for the protective order or resisting a motion to compel an answer.
Attorneys are seldom shy and the dynamics of litigation can arouse combative instincts that require victory to prove skill. While one does want an aggressive and competent attorney, it is often sadly true that the interests of the case from a cost benefit point of view is endangered by a series of angry discovery battles that often produce little evidence of value.
DESTRUCTION OF EVIDENCE
Nothing can alter the dynamics of a case more than discovering that another party or witness has destroyed evidence. Not only may it be illegal or a violation of the Code of Ethics, but it can often convince a trier of fact of the lack of integrity of an opposing party in and of itself.
Today, when computer discovery makes up much of litigation, and when witnesses foolishly try to “delete” relevant e mails or documents, this aspect of litigation has become increasingly important. Since searching a hard drive can reveal even deleted materials, a typical fight is to gain access to hard drives with the resisting party desperate to stop access, claiming that it is an invasion of privacy.
NUMBER OF PARTIES
All the above factors become far more likely to result in conflict if more than two parties are involved in the litigation. Further, the conflicting interests of co defendants or parties seeking indemnity can result in complex maneuverings in discovery to develop parallel lines of evidence which may hurt one party but assist the other…even if on the same side. (For example, an insurance company may want to find that its insured was intentionally grossly negligent to avoid coverage.)
DISCOVERY FIGHTS INEVITABLE?
While some cases are resolved without the bickering that makes up discovery fights, they are an exception. Put simply, the stakes are too high and the benefits of winning the discovery fight can make or break the case. Most attorneys, long used to intricate maneuvering in the struggles over discovery, realize that effective use and resistance to discovery is by far the best way to maintain the momentum of a case.
Some cases, such as personal injury, are so often routine that discovery is almost rote. Most cases involving complex issues end up with at least some discovery battles and those battles not only demonstrate to counsel the opposing party’s skills and resources but can demonstrate the existence or lack of evidence that will make or break the case.
THE SUBTLETY OF THE RESULTS
Unlike a court of law in which a verdict is read out before the parties, a victory in discovery is often invisible to the clients or even opposing counsel. For example, if a witness makes an admission in a deposition, a good lawyer will quickly move to another topic before the witness has a chance to retract the testimony on the record or before opposing counsel discovers the scope of the mistake.
Perhaps an example will best illustrate.
In one of our cases the opposing party had indicated that he had telephoned our client to cancel an order within a critical time limit. We had the telephone records which showed several calls from his office on the critical day in question.
During the deposition he testified that he was in France on the day in question and then testified that he had personally spoken to our client to complain about the order and cancel it. Back in those days all telephone calls from abroad were clearly noted on the telephone bill and we knew that with that testimony we could destroy his claim of timely cancellation. But the actual examination went along the following lines:
Q: You cancelled the contract on July 10, you say?
A: Yes, on the last day I could, of course. I knew it was important and made the call expressly for that purpose. I also gave him a piece of my mind…
Q: Are you sure it wasn’t the day afterwards, July11?
A: I already told you. I knew the final day I could and made a point of calling him.
Q: But you were in a different time zone, weren’t you?
A: (Laughing) Yes, I know. And I made it a point to keep that in mind. And we were ahead of you, anyway. Eight or nine hours, I think…
Q: Then it would have been eight hours, I believe. What time did you call?
A: Early evening.
Q: Anyone with you when you called?
A: No, I was in my hotel room. Alone. I’m married you know…(Laughter.)
Q: Why didn’t you ask your San Francisco office to call our client?
A: Because I was mad as hell, that’s why. I wanted him to know exactly how I felt.
Q: After the call, did you follow up with a telegram or letter?
A: When I returned.
Q: And that was Exhibit 14?
Q: Now I note that you list four things wrong with our packaging…please describe them in detail…
Note that there was no satisfying “Ha, I got you” or some such response. The answer we needed was on the record, useful to impeach in court later if needed, and by moving quickly along to a different topic the witness is unable to alter the testimony to his favor before the transcript is created.
That series of questions and answers won the case and opposing counsel and the witness did not even realize that until the settlement conference almost six months later when the settlement judge pointed it out to them.
Most victories in discovery are even more subtle, often a single entry in a ledger or a portion of testimony that is not believable.
And clients, who expect court room dramatics, often feel let down even when victory is achieved. As one told the writer after six hours of a deposition, “It’s like a chess game…and about as exciting.”
THE MOTIONS TO COMPEL
A party or witness who refuses to comply with the discovery rules can be subject to a motion to compel in court and these motions make up much of the turmoil and cost of discovery wars. Most courts appoint commissioners to hear such disputes. Most commissioners hear two or three dozen disputes each day and are not inclined to suffer fools gladly.
While attorney fees and sanctions can be awarded to a party refusing discovery, and while those discovery sanctions can even be as extreme as dismissing a case or a defense, most often the sanctions are relatively minor and the attorney fees awarded not enough to cover the cost of the proceeding.
However, what the parties really want…forcing compliance with discovery…is quite often granted and if there is a pattern of unreasonable refusal to comply, commissioners can become upset enough to levy severe sanctions.
Most courts require the parties to meet and confer and try to resolve their differences before bringing a motion to compel discovery and at times such discussions can avoid the full fight before the commissioner.
Again, due to the cost benefit aspect of discovery, some parties force the other to file motions to compel knowing that the added cost may deplete the litigation budget of the moving party. If one party has far more resources, this is a typical tactic.
But forcing such motions can have a counterproductive effect on a case. The more a party resists producing a document or witness, the more light is thrown on the fact that said document or witness may be vital to the opponent’s case.
Deciding whether to force motions to compel or not, whether to utilize other litigation tactics, is one of the many tactical decisions involved in the strategy of bringing a case to trial.
It is only when one enters forums without discovery or with very restricted discovery (courts abroad or most arbitration forums) that one fully realizes the significant difference the discovery tools bring to American litigation. Attorneys from abroad are often astonished at the power given to American attorneys to force production of evidence and to examine witnesses and are equally astonished at the complexity and cost of such discovery.
Most law offices will create a full scale detailed discovery plan at the commencement of a case which carefully orchestrates the order of witnesses to be called for depositions, the documents to be sought, the interrogatories to be served. The order and timing of discovery can result in additional evidence being developed and pursued as the case progresses…and new evidence coming to light can radically alter the underlying plan.
It is perhaps revealing to recall that only sixty years ago such discovery tools did not exist in most courts and cases were filed and then went directly to trial. Those were the days of Louis Nizer and Clarence Darrow, lawyers used to surprises from witnesses on the stand who had never been deposed and cases that began and ended in a matter of months rather than years.
This writer, towards the beginning of his career, once spoke to one of those Lions of the Court, a local celebrity who by then had retired. He bemoaned the propensity to avoid going to trial among modern litigators and the endless depositions that had replaced the excitement of the court room.
A judge who was in the room with us demurred. He reminded him that he had seen him in trial and doing his “tricks” and that if truth was the goal of litigation, the less dramatic but more complex world of depositions and review of evidence served the courts better.
And I will always remember the litigator’s response: “But the drama, Judge. The drama. What is life without drama?!”
Luckily for those wanting drama, there is no guaranty that a case will settle and any good attorney must proceed through discovery and trial preparation on the assumption that this will be the one case in ten that does go to full trial. And at that point…let the drama begin!