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Investigating Your Case

INVESTIGATING YOUR CASEAfter pleadings have been filed in a lawsuit, DISCOVERY begins. Discovery is the process of gathering facts and evidence for your case. Some information that seems trivial may prove to be very valuable, so it is important to document everything one learns during the discovery process.

Information may include background information, information about the facts of the case, names and contact information, of people who are involved or who may have additional information, documents, and almost anything else that sheds light on the case.

The RULES OF EVIDENCE limit what evidence can be presented in court, but the discovery process can yield information that may be helpful and informative even if is not ultimately allowed at trial. Therefore, the discovery process should be as complete and thorough as possible.

Some information that would be helpful to a case may be unavailable because it is “privileged.” Privileged information is that which is for any number of reasons protected from being disclosed to the opposing party in the lawsuit. Rules of privilege vary from state to state. However, the following generally apply:

  • Spousal Communications—conversations between husband and wife are often privileged; the idea is to protect the spousal bond and marital privacy
  • Doctor-Patient Communications—in many instances, information exchanged between a person and his/her doctor (including psychiatrists and psychologists), as well as medical files, are privileged to protect a person’s intimate privacy; an exception may apply where the lawsuit involves a personal injury claim or when a doctor’s examination is of a party at the request of the opposing party, as with a court-approved INDEPENDENT MEDICAL EXAMINATION (see below)
  • Communications with Religious Counselors—conversations with priests, rabbis, and other religious counselors are typically privileged; the religious counselor is morally obligated to keep in confidence any information disclosed to him/her during a private consultation
  • Financial Information—rules vary from state to state, but some financial records may be privileged, depending on the nature of the lawsuit and the type of records involved

Gathering Information

Information that is not privileged can be gathered directly from the opposing party. In an effort to save time and money, courts usually require that basic information be exchanged among parties at the outset.

Additional information can be obtained through a number of devices, including:
  • Request for Production of Documents—written request for any documents that may help a party prove their case; examples include police reports, business records, receipts, correspondence, and any other applicable documentation
  • Request for Admissions—written statements that the other party must, under oath, admit or deny; this time-saving approach eliminates the need to prove certain obvious facts or the authenticity of documents
  • Interrogatories—questions sent to the other party to answer truthfully; these answers may become part of the testimony used in the case, and must be answered honestly and completely, but it is important to limit answers to the scope of the actual questions and not offer extraneous information that could ultimately prove harmful to one’s case
  • Depositions—interviews with witnesses or any other sources of information relevant to the case; depositions allow parties to learn what witnesses will say in their court testimony and to gauge a witness’ credibility and demeanor; all parties may be present at a single deposition of a witness
  • Independent Medical Examinations—medical examinations by a doctor who is unbiased and uninvolved with any party to the case and who has not previously treated the person undergoing the examination; such examinations are rare but are occasionally performed when the physical condition of a party is at issue (as in personal injury cases)

If problems arise during the discovery process, parties may file one of a number of motions designed to resolve the issue. Commonly-used motions include:Motion to Compel—request that the court order an unresponsive or uncooperative party to comply with requests for information
  • Motion for More Responsive Answers—request more complete or more responsive answers than those provided; must be accompanied by documentation of discovery requests, actual responses, and explanations of reasons why responses are inadequate
  • Motion to Quash—request for relief from having to answer certain interrogatories or provide certain documentation on the basis that such information is privileged
  • Motion to Seal Matters Produced Upon Discovery—request that any protected information that a judge allows the opposing party to obtain be “sealed” (limited in use to informing the requesting party, but not otherwise released)

The effective use of motions and investigative procedures are the absolute necessity to putting together a good case. If you don’t have the information that you need to put into evidence then you have no case. The entire judicial process is based upon the idea that both sides should have all the information before a trial is conducted. The overall reasoning behind the free flow of information from each side is quite simple, the legal system wants to encourage settlement of controversies. This helps to facilitate judicial economy (i.e. less crowded dockets).----------------------------------------------------------------------------------

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