Discovery – It is called a “process” for a reason
January 25, 2018
By: Jessica Eaton
Being sued can be an emotional experience – a lawsuit can feel like an attack on you as a person and as a professional. The very essence of “fight or flight” is invoked – as one’s own financial, emotional and mental security is placed at stake. There is a reason Abraham Lincoln correctly assessed that “[h]e who represents himself has a fool for a client.” Emotions, including anger, worry, fear and despair run high during the litigation process, all of which are reasonable under the circumstances, but easily cloud even the most intelligent person’s thinking. Unfortunately, a systematic, detailed and brutally honest analysis of the applicable law and all the facts of the dispute (both the good and the bad) is imperative to creating the best defense. This analysis is critical; this analysis excludes emotion; and this analysis allows a lawyer to accurately assess the actual merits of the dispute and create and execute a productive defense. This analysis also requires a client’s full and complete participation, because a lawyer is only as good as his/her knowledge of the law and the facts, and lawyers rely on the client to provide all the facts.
One of the most important steps in assessing a case – albeit the most frustrating and time consuming for the client – is discovery. “Discovery” (or the “discovery process”) allows parties to obtain full knowledge of the issues and facts before trial. There are several ways litigation discovery in conducted in Texas:
- Written Discovery:
- Request for Disclosure: Specific, systematic questions established by Texas Rule of Civil Procedure 194.2(a) through (l), which provide a general overview of the case and its parts: witnesses, experts, alleged claims and alleged damages;
- Request for Production: Requests which secure the production of any “documents and tangible things” (“papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape records, data and data compilations” and now includes e-mails, text messages, social media posts, etc.) which is not privileged and is relevant or reasonably calculated to lead to the discovery of admissible evidence;
- Requests for Admissions: Questions specifically drafted to affirm evidence of incidental but important issues presented in a pleading – a way to limit the questions surrounding a specific incident or event;
- Interrogatories: Detailed, specific questions used to find out specific legal and factual contentions supporting the other party’s claims or defenses. Interrogatory responses are in-depth, require time and effort, and need full attention by the client and counsel to properly respond.
- Oral Discovery:
- Depositions: Scheduled meeting between the parties, which is recorded by a stenographer or videographer (or both), wherein a witness, party or other person is required to answer questions under the penalty of perjury as if they were sitting in front of a judge and jury.
Most written discovery responses are due back to the propounding party within thirty (30) days of service (unless modified by written agreement between the parties). Therefore, a client must act quickly to assist a lawyer in responding to the questions asked, gathering the items requested, and locating the people and contact information involved. Additionally, the discovery process requires a client be completely forthcoming and honest – it requires providing your lawyer – and therefore, possibly the opposition – information which may be embarrassing, implicate another person, or even hurt your defense. However, it is imperative a client provide a lawyer all the information, documentation, etc. which is responsive to any request, regardless of its effect on the lawsuit to ensure a lawyer can establish a solid defense.
Being sued is never fun, and one of the main issues lawyers face is a client failing to assist in discovery – which can be catastrophic to a defense, not only at trial but even before. But with active participation by a client and continued work and dedication, most lawsuits are defensible.
Please feel free to contact our office to discuss any question or issue you may have or any other legal matter which may arise.