In our last post we set out three general categories of information you need to know to be successful in trust and will litigation. They were:
- Civil procedure—things like motions and demurrers
- Civil discovery—written discovery, depositions, and expert designations
- Rules of evidence—including foundation, hearsay, relevance, etc.
Civil procedure we discussed. Now let’s tackle civil discovery.
The Discovery Act was instituted to (get this) make trials easier and more fair to all parties. But so much of litigation has become bogged down in the use, and misuse, of discovery. Rather than preparing a case for trial using discovery, many lawyers seem to be using discovery for the sake of harassing people and forcing settlements.
But discovery is far more important than simply using it for harassment. It is best used for its intended purpose—to prepare a case for trial. And if you are serious about going to trial (which you should be), then discovery will help you get there, and make trial easier to conduct.
Discovery can be broken down into (1) written discovery, and (2) oral discovery (i.e., depositions).
Here is a quick breakdown of the most commonly used discovery devices and a quick statement about what it is, when to use it, and some basic rules (not all the rules, just the basics you should know):
1. Document demands
What are they? Document demands are used to request relevant documents from the opposing party. They are also called “Requests for Production of Documents.”
What’s their best use? They are best used to determine what documents, if any, the opposing party has to support that party’s claims or defenses. Used properly, they can help establish the universe of documents that will be used at trial.
What are the rules? In requesting documents, you have to describe the category of documents you are looking for with reasonable specificity. For example, “all documents relating to the Smith Trust” would be a proper description of trust documents, and any documents relating to the trust documents.
The opposing party has 30 days in which to respond to document demands once they are served, plus an additional 5 days if the demands are served by mail, or 2 days if the demands are served by overnight delivery. For more information take a look at Code of Civil Procedure (CCP) Section 2031.010 as so forth.
What are they? Interrogatories simply ask questions of the opposing party, which must be answered in writing under penalty of perjury. Interrogatories come in two forms: form interrogatories (which are pre-printed by the Judicial Council), and special interrogatories (which are drafted by a party or a party’s attorney). Form interrogatories are basic questions provided on a pre-printed form. Special interrogatories are drafted by a party or attorney and ask whatever relevant questions are necessary to determine the facts, witnesses or documents the opponent is using to support his claims or defenses.
What’s their best use? Both form and special interrogatories are an important tool to gain knowledge about the other side’s case and position. They are best used to determine the facts, witnesses and documents the other side intends to rely on at trial to support its claims and defenses.
What are the rules? A party is limited to using only 35 special interrogatories, however, additional interrogatories can be used so long as they are accompanied by a declaration setting forth why the additional information is necessary. And special interrogatories can only contain one question per interrogatory—no compound questions allowed.
The opposing party has 30 days in which to respond to interrogatories once they are served, plus an additional 5 days if the interrogatories are served by mail, or 2 days if the interrogatories are served by overnight delivery. See CCP Section 2030.010 as the related provisions.
3. Requests for Admissions
What are they? Requests for Admissions ask the opposing party to admit certain facts as true. If admitted, then the fact is conclusively presumed true for purposes of trial. An opposing party does not have to admit a fact as true, they can deny it, but if that fact is later proven true at trial, then the party who denied it may have to pay the opposing party’s attorneys’ fees to prove the fact at trial.
What’s their best use? Admissions are best used to either (1) establish as true some basic, uncontested facts of the case, or (2) authenticate documents. Once a document is admitted as authentic, then there is no need to lay foundation for that document at time of trial. In other words, it makes trial easier to prepare for and conduct. It’s rare for an opposing party to admit a damaging fact in a Request for Admission.
What are the rules? Each party is limited to 35 requests for admission, unless accompanied by a declaration supporting the need for additional requests. The requests are unlimited when asking an opposing party to authenticate documents.
The opposing party has 30 days in which to respond to a request for admission once they are served, plus an additional 5 days if the admissions are served by mail, or 2 days if served by overnight delivery. See CCP 2033.710 as so forth.
What are they? Subpoenas are used to obtain documents and the testimony of witnesses who are not a party to the lawsuit. Subpoenas are most commonly used to obtain things like bank records, medical records, and other third-party documents.
What’s their best use? Subpoenas are best used to obtain independent information. For example, in a trust accounting the only way to be sure that the information being reported by the trustee is accurate is to subpoena the bank records and double check the trustee’s work. Once independently verified through the bank records, an accounting can be relied upon as being accurate.
What are the rules? Subpoenas must be personally served on the party who has the documents or witnesses you need. And there are special requirements you must follow whenever you are seeking records of a consumer. See CCP 2020.010.
What are they? A deposition is when a party gives live testimony under oath in front of a certified court reporter. Even though the testimony is given outside of court, it has the same weight and use as if it were in court.
What’s their best use? Depositions have two main functions: (1) to gather information that otherwise cannot be obtained through other discovery mechanisms (or to confirm information already obtained), and (2) to establish and lock-in the facts the opposing party intends to testify to at trial. Since a deposition is given under oath, the testimony can be used at time of trial to impeach a witness.
What are the rules? Technically, you can only depose a given person once. The deposition must be taken within either 75 or 150 miles of the witness’s residence depending on whether the place of deposition is in the same County as the lawsuit. See CCP 2025.010 and related provisions.
Once you know what type of information you are looking for, you can choose the appropriate discovery method and start finding out the facts of your case.