A Winning Record at Trial Starts with Critical Thinking in Discovery

Litigation and Trials   |   March 14, 2017
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At trial, there is what actually happened, and then there is what you can demonstrate, with admissible evidence, to develop the record the fact finder will consider to reach a decision. Skilled trial lawyers use the rules of procedure and evidence to develop and shape the record with favorable facts and information, and to block or minimize unfavorable facts and unreliable and inadmissible information. Control over the trial record is critical. That control can be won or lost in discovery well before the trial begins. 

A best practice is to develop an early case outline that includes the anticipated paths and obstacles to and through trial. This should include a discovery plan that outlines the facts you need to prove, and those you need to confront. The plan should include a specific focus on the discovery tools best suited to address those needs. There is no one-size-fits-all outline because every case is different, and not all discovery tools are suited for all cases. 

Written interrogatories and document requests, for example, are often served routinely before any other discovery occurs. But that type of discovery, or at least in that sequence, may not be best for certain types of cases. In fact, written discovery can sometimes be disadvantageous to developing an issue for trial. 

For example, many cases turn on the ability of a plaintiff, sometimes many decades after an event, to describe in detail what happened and how. Frequently, there are no records or other corroborating witnesses concerning the event, so there is no way to challenge the memory of the witness.  That means the testimony’s credibility will be a central issue for the fact finder at trial.

Taking an early deposition of such a plaintiff can be far more advantageous than serving written discovery that the plaintiff would have 30-plus days to answer, with help from others, including counsel. Written discovery, especially targeted interrogatories on a core issue, for example, will almost certainly do a few things that can create a disadvantage: (1) spotlight that you think an issue is important enough to focus on, (2) give your opponent an early opportunity to work on and refine a response, and (3) result in an objection that leaves you with no more information than you had before you served the discovery. You can be assured the witness will be prepared to address this issue at deposition.

An alternative approach is to forego or at least postpone written discovery, at least on the core liability issues, and instead discover such issues through depositions. This allows you to raise the issue for the first time in a live setting while the plaintiff or other witness is under oath and unable to consult with counsel or others on the response. It also gives you the ability to drill down with follow-up questions as needed, which you cannot do through written discovery. 

To be sure, if an issue is significant, a plaintiff, or any witness for that matter, is likely to have been prepared by counsel to address it. But they will not have been forced to sit down with their lawyer and work through their memory of details in response to the specific question posed in an interrogatory.  Posing questions on key issues during a deposition instead allows you to maintain control of the record and how that fact is developed for use at trial.  

The sequence of depositions is often equally important. For example, in cases where a party or other witness may be unable or unavailable to testify at trial, counsel will typically want to conduct a trial preservation deposition, sometimes very early in a case and even before you have the opportunity to conduct any discovery. This happens most frequently in cases in which the plaintiff alleges to have developed some sort of fatal disease such that he or she may not be available or alive by the time of trial.   

Such trial preservation testimony often becomes part of the record the fact finder will consider at trial in reaching a decision. Which side examines the witness first, therefore, is a critical issue, and there is good reason to seek court protection from the deposition absent an acceptable arrangement on the sequence of examinations.  

For example, in a trial preservation deposition, it is common for an ailing plaintiff’s counsel to lead their client through a story on key issues of product use and exposure.  The questions will signal to the witness key details of the testimony that the witness needs to address. Absent counsel’s assistance, the witness may have been unable to remember such details, or at least not in the same manner.  

Without the benefit of a discovery deposition, a defense lawyer will have had no opportunity to explore these same issues and the witness’s ability to independently remember them without counsel’s leading assistance. Nor will the defense have the benefit of a discovery deposition to control the witness and confront contradictory testimony. Of course, objections as to the form of the question are available to the lawyer, but there is no guarantee the objection will be sustained at trial to exclude the testimony from the record.

A trial preservation deposition essentially allows a plaintiff to skip fact discovery and go straight to trial. Even if you conduct a detailed discovery deposition at a later date, the record for trial has already been preserved, which marginalizes any opportunity to develop testimony on your terms. You will be left to publish contradictory testimony to the fact finder instead of confronting witnesses with discrepancies live.  You will be disadvantaged at trial before the first juror is seated.  

The examples above demonstrate that each case is different. There are often good reasons to evaluate the sequence in which discovery tools can be used to maximize your client’s advantage at trial.  A well-conceived discovery plan that confronts the facts, proofs, and rules of procedure and evidence will help you gain and maintain control over the development of the record the fact finder will ultimately consider in deciding the case.  

Originally published in DRI's Trials and Tribulations, The Newsletter of the Trial Tactics Committee (March 14, 2017).

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