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  • Jim Ferraro

Discovering Facts and Deterring Falsehoods

To begin preparing for a trial, both sides engage in what is referred to as discovery. This is the formal process of exchanging information between the opposing parties about the witnesses they will call to the stand and the evidence they plan to present at trial. Discovery enables the parties to determine before the trial begins what evidence they may choose to present. It’s designed to prevent trial by ambush, in which one side doesn’t learn of the other side’s evidence or witnesses until the trial is already under way, leaving no time to obtain counterevidence.

One of the most common methods of discovery is taking depositions. A deposition is out-of-court testimony given under oath by any person involved in the case. It can be used at trial or in preparation for trial. It may be taken in the form of a written transcript, a video, or both. In most states, either of the parties may take the deposition of the other party, or of any witness. Both sides have the right to be present during depositions.

Depositions enable a party to know in advance what a witness will say at trial. Depositions can also be taken to obtain the testimony of important witnesses who can’t appear during the trial. In that case, the transcript is read into evidence or the video is played at trial.

Typically a witness’s deposition is taken by the opposing side and used not only to discover facts but also to discredit the witness’s testimony at trial if the trial testimony is different than the testimony taken during the deposition. Most commonly, expert witnesses are deposed by the opposition to show bias or some sort of monetary interest in the litigation. These witnesses are hired by a party and paid to present their testimony. A lawyer’s dream is when inconsistent testimony is uncovered and he or she can ask a witness in front of a jury at trial, “Are you lying now, or were you lying then?”

Depositions usually consist of a direct examination, followed by cross-examination from the other side. In addition to taking depositions, either party may submit written questions, called interrogatories, to the other party, which are answered in writing under oath. If one party chooses to use interrogatories, the questions are sent to the lawyer representing the other side, and that party has a period of time in which to answer. Most states allow 30 days to answer interrogatories. Usually interrogatories are used for background information, because the respondent has thirty days to think before providing answers. This eliminates the element of surprise that exists in a deposition, in which a witness has to answer questions contemporaneously.

In addition to depositions and interrogatories, there are other discovery methods for obtaining evidence, such as requests for production of documents and requests for admissions by the opposing party. There are still other methods for gathering evidence, but these are the four most common ways to obtain evidence before trial.

I knew from the very start that DuPont and Pine Island Farms weren’t going to make things easy for us. In this case, the discovery process would be a long and tedious road designed to break us before we even saw the inside of a courtroom. The harder they made it for us to get evidence and the more they prolonged the process, the more time and money it would cost. The hope was that I’d break, give up, and walk away.

Fat chance.

I was in this to win this.

In my next post, I’ll continue to explore the discovery process in this case.

I’ve written a white paper, based on my book, Blindsided, about the discovery process. You can find download it through my website.


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