Overview of Civil Litigation, Part II: Discovery

Civil litigation questionsThe discovery phase of civil litigation is extremely important in the development of your case. It is the time when the parties can use various tools to investigate the factual bases of claims and defenses. The applicable rules of civil procedure and the judge presiding over your case will determine the breadth of discovery, including which tools are available in your dispute. Colorado procedural rules intend to limit discovery so that it does not become disproportionate to the damages in dispute. Choosing the correct tools for discovery can greatly assist you in preparing for trial.

Mandatory Disclosures

In almost all civil cases, the parties are required to disclose certain information, documents, and tangible things near the beginning of the litigation. The purpose of mandatory disclosures is to reduce the need for additional discovery.

As part of mandatory disclosures, each party is required to disclose the name, address, and telephone number of individuals who could have information relevant to the dispute. They must also disclose documents or other tangible items in their possession, custody, or control that relate to the claims or defenses raised in the parties’ pleadings. All parties seeking damages must state which categories or types of damages they seek to recover in the litigation, and provide a computation of economic damages.

Lastly, if there is an insurance policy or agreement that might require an insurer to cover or “indemnify” a party, that policy or agreement must be disclosed. For example, in a dispute over an auto accident, the defendant should disclose any applicable auto insurance policies; in a construction defect dispute, contractors would disclose their potentially applicable commercial general liability policies; and in certain real estate disputes, title insurance may need to be disclosed.

Oftentimes, over the course of litigation, parties will obtain or recall additional information, documents, or items that fall within the requirements of mandatory disclosures. In such cases, the parties are required to “supplement” their disclosures by turning that information over to all the other parties in the case.

Expert Disclosures

Later in the case, the parties will exchange expert disclosures. Expert witnesses are witnesses who are experts in the field in which they have been designated to testify. Many experts have no personal knowledge of the facts in dispute, but instead draw conclusions from their investigations based on application of their knowledge, experience, and training to the facts.

There are two basic types of experts in civil disputes, and different disclosure requirements apply to each. The first type of expert is often called a “non-retained” or “treating” expert. This type of expert was not hired or “retained” for the purpose of testifying at trial; instead, the expert had some role in investigating the facts underlying the dispute outside of litigation. For example, in an auto accident, the doctors who treat the injury victim would be considered “non-retained” experts. They examined the injury victim and made certain conclusions about his or her injuries, causes of injury, and treatment recommendations, but they were not hired for the purpose of testifying in court; instead, they were hired for the purpose of helping the injury victim recover from injury.

The other type of expert is one who is specifically hired for the purpose of examining evidence and testifying at trial. Using the auto accident example, if there is a dispute about how the accident occurred, the parties could hire accident-reconstruction experts who would investigate the scene of the accident, look at available documents and photos, and run their own calculations to determine how the accident occurred. Then, at trial, they would testify regarding their investigation and conclusions.

Different disclosure rules apply to different types of experts, but generally, you must disclose what your experts are expected to testify about at trial, and if they have created relevant reports, the reports will need to be disclosed; the expert’s experience and qualifications relevant to their investigation; whether you have paid them for their time, and if so, how much; and, if they are a retained expert, a list of publications and past trial or deposition testimony in other cases.

Expert testimony can be extremely valuable or detrimental to your case, and the disclosure requirements are the subject of much contention. Therefore, it is extremely important you are careful about making expert disclosures. If you do not make proper and timely expert disclosures, the Court may prevent your expert from testifying, or limit the expert’s testimony.

Written Discovery

The most common types of written discovery are interrogatories, requests for production, and requests for admission. Interrogatories are written questions issued by one party to the other. Interrogatories must be answered under oath. They are useful in discovering facts and also in locking down the other party on a certain issue or position.

Requests for production are usually used to obtain certain documents. With them, the parties can demand that the other party produce certain types of documents that might be relevant to the dispute. Requests for production are broader than mandatory disclosures but not unlimited. For example, in an auto accident case where the accident victim has a history of neck injuries, a request for production of that person’s pre-accident medical records would be helpful in determining which injuries were caused by the accident and which preexisted the accident.

Requests for admission are used when one party wants to know whether the other party admits or denies certain factual statements. Typically, they are not as helpful as interrogatories or requests for production, but they can be useful in establishing that certain facts are not in dispute, or, when used with interrogatories, requiring a party to explain its basis for disputing certain facts.

Depositions

A deposition is where attorneys question a party or witness under oath and the verbal exchange is recorded by a court reporter. Depositions are helpful in learning more about facts, theories, and beliefs. Unlike written discovery, which allows the answerer a month or so to come up with a written response, often with an attorney’s help, in a deposition, the person answering questions—the “deponent”—needs to answer the questions immediately, as you would in court. If a witness answers a question at trial differently than they did in deposition, it could be a basis for impeaching the witness.

Depositions are helpful in learning what facts a party or witness might have, and where additional investigation may be needed. In addition, they are a chance for the attorneys to see how parties and witnesses fare while answering an attorney’s questions. Does the witness make appropriate eye contact? Does she answer with confidence? Does he backtrack, exaggerate, or equivocate when answering? All these cues affect the value of your case because juries rely upon them in determining who to believe.

Other Tools

The discovery tools discussed above are just some of the more common discovery devices. There may be others available in your case, but as stated above, the rules or your judge may limit your ability to use them. Some discovery tools may be available only if the Court gives you permission first.

Conclusion

The discovery phase of civil litigation is extremely important in developing the facts and evidence that will be presented at trial. Cases can be won or lost in discovery. We recommend you seek the help of an experienced civil litigation attorney to help choose what types of discovery would be helpful in your case, and to implement them appropriately.

Springs Law Group offers free consultations on civil litigation cases. We can sit down with you and discuss what types of discovery might be helpful in your case and the expected expenses associated with such discovery. Regardless of whether you choose to retain Springs Law Group, we recommend you find an experienced civil litigation attorney who can help with this crucial phase of litigation.

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