Pretrial Discovery - Tools Used to Uncover the Facts of a Lawsuit
Last Updated: October 21, 2017
The early stages of a lawsuit involve the disclosure of evidence by each party which is known as pretrial discovery. Discovery is meant to eliminate surprises and to clarify what the lawsuit is about, should either party realize they should settle or drop the lawsuit.
Generally, most civil cases in the U.S. are settled right after discovery. After discovery, both sides are often in agreement regarding the strengths and weaknesses of the case and this results in a settlement which eliminates the expense of a trial.
Types of Discovery
Here are the different types of formal discovery tools that are frequently used in lawsuits.
- Requests for production of documents. This is generally how discovery will take place in anything you might do. You will be asking for any proof that a creditor has regarding the debt. Requests for production are usually used to gather pertinent documents, such as contracts, employment files, billing records, or documents related to real estate.
- Depositions. In a deposition, the parties meet face-to-face and answer questions under oath. The questioner can be either the party taking part in the lawsuit or the party's lawyer. The questions and answers are recorded and used as evidence. The deposition can be submitted in the form of a written transcript, a videotape, or both. In most states, either of the parties may take the deposition of the other party, or of any other witness. Both sides have the right to be present during oral depositions. Typically, in consumer credit lawsuits, depositions are not used.
- Interrogatories. An interrogatory is a written list of questions which must be answered. In some states, an interrogatory is sent to a consumer along with a summons to trial. They are used exactly like depositions, any answers to questions in an interrogatory can and will be used against you.
- Requests for admission. In a request for admission, one party asks the other party to admit, under oath, that certain facts are true or certain documents are genuine. The request for admission is also usually sent along with the summons and is required to be filed along with an answer.
- Sharing information about expert witnesses, and the expected testimony. If an expert witness is to be called or submit testimony, this bit of discovery shares the background of the witness and what areas of expertise they will be testifying on.
- Physical or mental examinations of a person. In general, the court where the action is pending may order a party whose mental or physical condition is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control. This discovery is rarely used in civil debt cases.
If allowed by your state or county rules of civil procedures, you should always ask for discovery at the minimum in the forms of requests for production of documents. You can also send your own interrogatories and requests for admissions. The only exception would be if you are sending a bill of particulars (only certain jurisdictions allow this), which can sometimes serve as all the discovery you need.
Please note: WE ARE NOT ATTORNEYS. If you are being sued, it's always a good idea to hire an attorney or get some legal assistance. If you cannot afford an attorney, a lot of people have handled their cases pro per or without a lawyer. Our articles are meant to provide basic information on handling litigation.