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Despite what many television programs portray, only about 0.6% of civil cases actually make it to the trial phase. So, what is your attorney doing the rest of the time? Simply put: discovery.
Your attorney’s job is to literally discover how strong or weak your case is, and how to proceed from there. In order to do that, your attorney has to do a considerable amount of research. And, we’re not talking legal research here, I mean factual research.
Your attorney has to uncover as much as he or she possibly can about you, your adversary, and the situation leading to you hiring an attorney to determine what course of action is best for you. The vast majority of civil cases settle during this discovery phase because one side or other comes across facts that tell the attorney the client would be unlikely to win at trial. So, how does this whole process begin?
Civil Litigation begins with the filing of a Complaint in the appropriate court (we will discuss how to determine which court is appropriate in subsequent articles on Jurisdiction and Venue). In the Complaint, the Plaintiff alleges the facts that underlie his or her claim against the Defendant and requests damages or other relief from the court.
Once the Complaint is on file and the Defendant is served with a summons (i.e., notice that the Complaint was filed), the Defendant is given the opportunity to respond to the Plaintiff’s allegations. Assuming that the Complaint survives any Motion to Dismiss filed by the defendant, the Defendant will file an answer to the allegations of the Complaint. Once the Complaint has been answered, the case is “at issue” and the discovery phase of litigation begins.
The first step of this phase is to issue written discovery. Written discovery consists of four primary types of documents: (1) written interrogatories; (2) requests for production of documents; (3) requests for admission of facts; and (4) third party subpoenas.
- Written interrogatories are written questions to the opposing party, to which that party must respond in writing.
- Requests for production of documents are requests for the opposing party to make available to the requestor certain documents in its possession.
- Requests for admission of facts are requests for the opposing party to admit or deny certain facts, or the validity of certain documents.
- Third party subpoenas are written interrogatories and requests for production of documents issued to people and organizations that are NOT parties to the lawsuit.
Typically, each side will initially object to certain interrogatories and requests for production, on one of the following bases:
- that the discovery request seeks information that is not relevant to the case;
- that the discovery request is overly broad (i.e., not narrowly tailored to discovering only relevant information);
- that the discovery request is unduly burdensome (i.e., the burden of gathering the information sufficiently outweighs the relevance of the information); or
- that the requested information is subject to attorney/client or some other privilege.
An objecting party will often withhold the information that it claims is not discoverable. If the requesting party feels that the other side’s objection is meritless, or if the other side fails to timely produce the requested information or documents, the requesting party must send a letter to the party that it believes is wrongfully withholding information or documents in an effort to resolve discovery objections outside of court. This letter should detail the deficiencies in the other party’s discovery responses, explain why such responses are deficient, and request that the withholding party supplement its deficient answers within a specified time period.
If, after this time period expires, the parties are not able to work out their discovery differences, the requesting party is entitled to file a Motion to Compel Discovery. Both Illinois and Indiana law require that the parties attempt to work out their discovery differences outside of court before a Motion to Compel will be granted. If the judge grants a Motion to Compel, he or she will order the answering party to answer the requesting party’s discovery more appropriately or fully, and may assess attorney fees expended by the requesting party to obtain such information. If the answering party fails to appropriately respond within the time period established by the court, the answering party will be held in contempt.
As new information comes to light throughout the course of the written discovery phase, each side will issue a second or third set of interrogatories and production requests is necessary.
Both sides will usually wait for complete and satisfactory answers to their written discovery requests and subpoenas before scheduling depositions. The reason for this is twofold. First, depositions are expensive, and free written discovery allows us to narrow our focus in order to lessen their cost. Second, complete written discovery is a useful tool to keep the deponent from evading complete answers in his or her deposition.
The written discovery phase can range from two months to longer than a year, depending on the complexity of the litigation and the willingness of the opposing sides to cooperate with one another. Although a lengthy discovery phase can be frustrating to litigants, thorough discovery is an important step to assembling a winning case. Assuming competent lawyers on both sides, most cases are won or lost based mostly on the facts that come to light during written and oral discovery.
 Brian J. Ostrom, Ph.D. et. al., Examining Trial Trends in State Courts: 1976-2002, 1 Journal of Empirical Legal Studies 768 (2004)