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.
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).
Illinois Law Blog: Learn About Law
O’Flaherty Law is based in Downers Grove, Elmhurst, and Naperville, Illinois. Our team has expertise in many areas of law including but not limited to bankruptcy law, business & corporate representation, civil litigation, criminal defense, estate planning, divorce & family law, immigration; probate, guardianship & elder law; and real estate law. If you have any questions or would like to schedule a free consultation, please e-mail us at email@example.com or call us at (630)324-6666.
Where You Can Read Us
O'Flaherty Law of Downers Grove
5002 Main Street, Ste. 201
Downers Grove, IL 60515
O'Flaherty Law of Downers Grove is open Monday thru Friday from 9:00 AM to 5:00 PM CST. We are available by appointment before or after our regular hours.
O'Flaherty Law has experience in legal services in the following legal practice areas: estate planning and probate; featuring wills and trusts, powers of attorney, living wills, estate tax avoidance and probate practice; real estate law; featuring commercial and residential sales and leases, foreclosure defense, short sales, REO closings and consent foreclosures, mechanic's liens and landlord and tenant disputes; family law; featuring divorces, child custody, child support, paternity, adoption and orders of protection; criminal law; featuring DUI, traffic and criminal defense; business representation; featuring entity selection, incorporation and s-corp election, bylaws and operating agreements, annual reports, annual meetings of shareholders, employment agreements, handbooks and warning and termination letters, business contracts, independent contractor agreements, trademarks and copyrights, regulation and licensing compliance and dissolution and mergers; business and personal bankruptcy; featuring Chapter 7, Chapter 11 and Chapter 13 cases; litigation; featuring commercial contract and tort law, employment and labor law, personal injury and collections; and immigration law.
Located in Downers Grove, Illinois, O'Flaherty Law serves DuPage County, Dekalb County, Will County, Cook County, Lake County, Kendall County, Kane County, McHenry County Winnebago County in Illinois, as well as the following cities: Wheaton, Naperville, Woodridge, Downers Grove, Darien, Willowbrook, Westmont, Lisle, Oak Brook, Warrenville, Glen Ellyn, Aurora, North Aurora, Batavia, Geneva, St. Charles, Lemont, Joliet, Bolingbrook, Plainfield, Crest Hill, Lake Forest, Lake Bluff, Northbrook, Highland Park and Chicago.
© 2015 by O'Flaherty Law. All rights reserved.