Creating A Discovery Plan
An attorney who does not do discovery is exposing himself to legal malpractice. You have a certain duty to represent your client as adequately as you can, and that may entail doing certain discovery. Doing discovery sometimes can even shorten the required trial time. It is important to have a discovery plan.
If your client insists that he does not want you to spend a lot of money on discovery then you need to put that into a document and show that you have advised your client of the kind of discovery you believe is needed, and the risk involved in not doing it. If things do not go well at the trial and the client tries to blame you, you then have something in writing, stating that you advised your client of the need to engage in a discovery plan.
Before you can create a discovery plan, you need to develop your theory of the case. A theory of a case could be simply a couple of sentences or short paragraphs of what you would tell the jury about your case and why you should prevail. In order to prove your theory of the case, you have to develop a discovery plan to prove all these points with evidence.
An important development in the discovery process, over the last several years, is electronically stored information. These days, a lot of litigation involves obtaining emails or documents that were posted on social media. A lot of times, in very complex litigation, there could be a million digital documents. It becomes a challenge to catalog and manage those documents. There are now companies that offer a platform that allows you to upload not only documents that are scanned, but also original native documents, to establish a very complex database and be able to search by criteria to locate documents.
There are a lot of different discovery techniques available to you, including a request for documents. This is usually one of the first requests for discovery that you do. You ask the other side to produce documents, and you want to focus on documents that you need to support your theory of the case. If they oppose the request and you have to go in front of a judge to compel production, you need to be able to explain why these documents are relevant to your case. If your discovery request is focused, it is relevant, and it supports your theory of the case, the court is going to be more inclined to side with you.
Another discovery technique is a request for admissions. A request for admissions is a document you send out to your opponent, asking them to admit certain facts or authenticate various documents. If someone admits a fact, he cannot put on evidence, in trial, to the contrary. As far as documents, you might have certain documents that you have to get into evidence and in order to get those into evidence, you are going to have to subpoena the custodian of records. You can avoid that by sending out a request for admissions and having your opponent admit the authenticity of certain documents.
A very valuable discovery technique is interrogatories. Interrogatories are when you send out questions to your opponent to answer, in writing. Depositions are a similar technique and are probably the most powerful discovery techniques that are available. A deposition is when you have your opponent or a witness appear in front of a court reporter. The other side has the opportunity to be present and you can ask questions to the witness or the deponent and record his answers. At a deposition, the witness is obligated to answer every question you ask unless you are asking for privileged information.
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