What is discovery?
After a civil lawsuit has begun, both parties will begin compiling all documents that are relevant to the litigation. Sharing these documents with the other side is first step in discovery, known as the exchange of affidavit of documents. The second step is what civil litigation lawyers call “examinations for discovery”. At an examination for discovery, each party’s lawyer can question the opposing side on the documents provided. This is done to help the civil litigators and clients further understand each other’s cases.
It may seem counterintuitive that each side would be so open with the other about their case before trial, but in reality, it is one of the most important steps in civil litigation. It would be completely unjust in civil litigation for the party that wins to be whichever best ambushes the other party with surprise evidence at trial. Further, the goal of litigation is not to have an ongoing, bitter lawsuit forever, but to settle the dispute as soon and for as little cost as possible. The goal of discovery, then, is to help each party understand both their case and the opposing party’s case in the hopes that this better understanding will enable the parties to settle their suit and move on sooner. Doing well in discovery, particularly in examinations, can lead to a favourable settlement and avoid the expense of a trial.
How can civil matter lawyers reduce discovery costs for their clients?
The most important thing a litigation law firm can do to reduce discovery costs for their clients is to prepare them for examinations beforehand. Civil litigators will do this in some capacity, but doing it well can make a big difference. For example, a poorly prepared deponent (person being examined) might ramble, giving long answers to simple questions, and give the other lawyer more information to use against them than necessary. This is bad for the deponent’s case and bad for cost savings. To see how, take the question, “do you own any other properties?” This question might naturally lead someone to say, “yes, I own xyz…” and potentially begin to speak about their other properties if they do have others. A well-prepared deponent, however, knowing to keep their answers short and to the point, will simply say “yes.” This does not give away unnecessary information, and saves costs by reducing the amount of time in examination in two ways: (1) the deponent spends less time talking, and (2) the examining litigation lawyer doesn’t get more ideas for questions from the deponent’s ramblings. Other common mistakes include: being argumentative, trying to make your case rather than just answering the question, telegraphing your answer by nodding while a question is asked, answering before being sure you understand the question, and not answering the question that is asked.
At Walker Law, we send our clients a detailed discovery preparation letter, which outlines key considerations they should remember when being examined by the opposing civil lawsuit lawyer. We also schedule a two-hour preparation meeting with our clients to explain to them why these strategies are so important and provide examples of transcripts to show what good, okay, and bad conduct is when being examined. We recently had a client say he was extremely pleased with the preparation we did with him, and that he couldn’t recommend our preparation strategy enough.
Please note that this article is intended for information purposes only. It is not intended to provide legal advice. If you have any specific questions, please contact a lawyer.