Filing a Lawsuit: The Discovery Process

Filing a lawsuit by yourself can be a daunting task. This article provides an overview of what happens during the discovery process—an important stage in filing a lawsuit—and how you can prepare a discovery plan.

After filing a lawsuit, several things will likely need to happen and the court clerk can guide you on things like pre-trial conferences and the trial calendar. When it comes to discovery, however, the clerk is not your lawyer and you are on your own.

What is Discovery?

The idea behind discovery is that both sides should share information before going to trial. That way, a trial can proceed smoothly, without parties requesting information from each other and otherwise holding up the process. During the pre-trial phase of filing a lawsuit, discovery, you will be asking for information from the other party and responding to their inquiries as well.

Create a Discovery Plan

The best way to organize yourself for trial is to create a trial binder that outlines the basic elements of what you need to prove, and how you are going to respond to points that the other side will likely make. Next to each of these points, write in how you plan on proving that point.

For some of these points, you can likely go find the information you'll need by yourself or you may already possess the information that you need. Often, however, the opposing party has the valuable information that you need, and that is why we have the discovery process. Determine which pieces of information your opponent has that you need to ask for, and create discovery requests to get them.

Informal Discovery

In addition to the more formal devices for discovery (see below), always consider gathering information in a less formal way. Common ways to collect information to help you during your trial that don't require formal discovery include:

• Taking photographs of damaged goods, property, the accident site, etc.
• Collecting documentation from third-party sources that verify your claims.
• Informally interviewing people to better understand your case.
• Investigating your opponent, their insurance coverage, etc.

Formal Discovery

There are a set of rules that set forth how discovery will be handled before a trial begins. Check with your clerk on the set of rules that pertains to you. Here are the most common methods of discovery available in almost any court:

• Requests for Production (RFP ): A request for production is the most common way to get documents when filing a lawsuit. Remember that documents are usually defined broadly and encompass things like electronic files, not just paper. You need to set out clearly which documents you want produced, otherwise expect the other side to object to your request as too broad.
• Depositions :"Depos" are the legal interrogations you often see portrayed in movies and on TV. A deposition is an oral, in-person interrogation, where one side asks questions and the other side has to answer "under oath" (lying under oath can be a crime).
• Requests for Admission (RFA) : A request for admission is a written statement that you generally ask your opponent to either admit or deny. This is not typically used to get an admission of guilt, but rather is used to get the other party to stipulate to a basic set of facts or to admit that a document is genuine. For example, you may ask the other party to admit that it owns the truck that collided with your car so that this doesn't need to be established at trial.
• Interrogatories :"Interogs" are written questions that a party must respond to in writing and "under oath." These are not very useful because they are typically answered very carefully by a lawyer and end up saying almost nothing.