Discovery is the process by which parties to a legal dispute gather information. It is a basic principle of our legal system that legal proceedings are fair. One way to ensure this fairness is to develop a process that facilitates the exchange of information between the parties such that one is not blind-sided by information the other side knew but kept hidden. This process is called the discovery process, and it is critical in nursing home neglect cases.
After the parties have filed a lawsuit and moved beyond the initial filing, serving, and answering part of the legal process, then the next step is discovery. How do the parties actually procure the information they seek? What happens when the other side refuses to give them information?
How Discovery Works
In discovery each party seeks information from the other party or third parties. To do this, there are four types of formal discovery tools that are frequently used in lawsuits. They are:
Depositions are the closest thing to a courtroom procedure that is invoked as part of discovery. During a deposition, a party or that party’s lawyer conducts face-to-face questioning of another party or a witness to the dispute. The deposition is like being called into testify in court. Like on the witness stand, the person being questioned, the “deponent,” is put under oath and their answers are recorded. This creates record that either party can then use during further negotiations or at trial. If the case eventually goes to trial and the same person who was deposed is called gives different testimony it first may suggest that the witness is unreliable but may also open that witness up to perjury charges. Depositions allow parties to know what a witness will say at the trial or get testimony from someone unable to attend the trial. Remember that depositions are sworn statements made under oath. Everything said will be part of a transcript that can be used later.
There is no way to tell how depositions will go. Some depositions can be as short as an hour, other can last for a week. Every attorney has their own reasons and strategies behind deposition taking. Usually depositions serve some specific purposes, namely to cement witnesses to their stories, to see what the other side’s witnesses will testify to, and to get a feeling for the witnesses and how they would behave at trial. Lawyers sometimes refer to this as conducting a “practice trial.”
As far as giving a deposition your attorney will tell you what he or she wants from you if you are deposed. In any case, be honest and clear. The point of depositions are to elicit facts. There is no value in speculating. Most people don’t like to admit their ignorance and so we refuse to admit we don’t know some things. This is not useful in depositions, if you don’t know, just make that clear. Also, do not give more information that is asked of you. Sometimes attorneys use depositions to get you to answer questions or reveal your strategies. Be wary of this kind of questioning and know when a question deserves only a limited answer.
Please take a look at Part 2 of this series to learn more about the methods of discovery in the civil justice system.