Discovery, An Introduction

Discovery is much of the process in any lawsuit. It is the term that describes what is supposed to happen between the filing of the lawsuit and the trial. The purpose is for each side to "discover" all of the facts and information that the other side has to either prove (Plaintiff’s claims) or disprove (Defendant’s case) the statements or allegations in the Petition. The entire process is devoted to theoretically sharing information between the parties so that the trial can proceed more quickly. In effect, discovery seeks to avoid the old "Perry Mason" style trial process where the parties went through a long pre-trial process only to have the "key witness who saw everything show up at trial and prove the bad guys were lying." It is viewed in the law today that if the other party knew that the "key witness" would show up, they would not waste the legal system’s resources and time, and they would just pay the Plaintiff.

The main problem is that no one wants to show their case to the other side because the other side can then counter the evidence with more evidence. So both parties spend the discovery process trying to find out everything the other side has, without revealing anything their side has. This is done with very technical questions and very technical answers. Often, these answers are viewed as misleading, or outright falsehoods, but if given a very technical meaning, a party may still have told the truth. The pre-trial process is devoted to these information exchanges, and then requests from the Court for rulings on evidence and other procedural items. Additionally, parties ask the judges to force the other party to disclose some information.

What Takes So Long? Indeed, this wrangling and withholding usually takes the long period of time. State procedural rules vary markedly, but all provide technical rules for the timely request and exchange of information between the parties. These rules must be followed and any failure to follow the rules can be problematic and seriously damage the chances of winning at trial.

Once information is exchanged, there are procedures for further review of the information and follow-up requests. Perhaps new information was learned by one party during the exchange.

Many times, however, the parties have the information, but the court dockets are so overcrowded that the cases take four or five years to come to the trial phase. Your court system in your locale will suffer from the same backlog in many cases. There are countless stories and complaints from clients who think that attorneys are deliberately delaying, when they are just as frustrated by the process as clients can be.

Both of these facts are the primary reasons for a lawsuit to take so long to complete, and often one party is deliberately delaying to "string out" the time for payment to the Plaintiff. But, even more frequently, both parties are at the whim of the arduous judicial process, and the blame does not lie with either attorney.

If you have any questions about the discovery process, we have articles about common tools used. You may also contact member services and be paired with an attorne