Discovering something, in a reserved way
This column has nothing to do with Leif Ericson, Christopher Columbus, nor for that matter, Sir Isaac Newton, Albert Einstein nor the first Cro-Magnon to deduce that a balloon rubbed vigorously upon your scalp will cause your hair to stand on end and a balloon to adhere to a nearby wall. No, it doesn’t even have to do with the prize innocently loitering beneath the peanuts and caramel corn in your box of Cracker Jacks and the inevitable gleeful encounter with your sticky fingers.While to a lay person, discovery generally means finding something new or exciting, to a lawyer, it means … well, finding something new or exciting. But in a reserved, and of course, dignified way. Discovery (the lawyer type, anyway) is also a process. It is the process by which information is gathered in preparation for trial or, perhaps, in preparation for an arbitration.I’m sure your mother told you this a zillion times but… discovery has many faces. Discovery consists of the pre-trial devices that may be used by one party to the dispute to obtain facts and information about the case from the other party. Yeah, this really says what you think it says; discovery is the process by which your adversary feeds you information which may help you bury him. Of course, you have to do the same. In this way, at least ideally, the truth comes out and justice is served.Tools of discovery include depositions, whereby an attorney for one side or the other interviews or “examines,” under oath, someone with information relevant to the dispute. When someone has their deposition taken, they give testimony concerning the facts of the case which evidence may be compared to the testimony the same person gives at trial. If the two are inconsistent, the person may be “impeached” by the inconsistencies. In other words, the lawyer may ask them to explain in open court why what they said at the deposition and at trial don’t match up. Impeachment goes to the credibility or believability of the witness. Depositions, too, often yield valuable information pertinent to the dispute, allowing the lawyer to delve in to the deponent’s knowledge of the facts. Most times, deposition testimony is elicited before a shorthand reporter, who takes down everything that’s said. This then is turned into a deposition transcript (a written record) which is provided to parties on both sides. Increasingly, depositions may also be recorded via video.Interrogatories comprise another discovery tool. Interrogatories consist of written questions related to the matter in dispute which are propounded by one of the adversarial parties (usually through legal counsel) to the other. Although generally limited in number, interrogatories are often precisely crafted to get to meaty questions concerning the dispute.Another tool plucked from the discovery quiver is requests for admission. Requests for admission are what they sound like. One party, (via counsel) asks the other party, under oath, to either admit or deny what are often key elements comprising the dispute. It is presumed (and legally required) that the other party answer truthfully and, hopefully, hoist him or herself by his or her own petard. Obviously, as both sides to a dispute are usually pursuing an agenda and, honestly, often seeing things through different eyes, admissions are rare and, more often, are artfully circumvented.Requests for production of documents often tap a rich vein of information. This tool is another form of written discovery whereby the requesting party asks the other party for the documents in his or her possession which may be relevant to the dispute. Armed with the other party’s documents, quite often, invaluable information is unearthed. Say, for example, a dispute revolves around a doctor’s alleged malpractice. If on page 23 of the hospital records appears the note “cut off patient’s healthy left foot instead of gangrenous right,” the plaintiff might well be armed (no pun intended) to pursue either an immediate settlement or else to pursue his or her claim in Court.In the proper circumstance, other means of discovery may be employed. In the instance where a person’s health is an issue in the litigation, physical examination by a doctor may be permitted. If the issue is, instead, a person’s mental health or well-being, psychological examination may be pursued. In the proper circumstance, entry on to the property of another and/or various inspections of relevant places or things may be allowed.What all of this amounts to is finding out the facts relevant to the dispute. Too, it levels the playing field between the litigants so that one does not wrongfully prevail by virtue of his or her withholding information relevant to fair and just resolution of the matter.While it may at first blush seem unfair that you might be compelled to disgorge your private information to the person or persons who would have your head, to do otherwise would be patently unfair. If permitted, such system would obscure the unferreting of truth, which is what, when distilled to its very essence, a lawsuit is intended to promote.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Mr. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Mr. Robbins may be reached at 926-4461 or at his e-mail address: email@example.comVail, Colorado
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