Discovery: The Trenches Of Litigation
Discovery is where cases get won or lost, and it's far more important than many litigators realize.
One of my colleagues told me early on in my career that litigation is often won or lost in discovery. It took me months of working to understand what he meant; to me as a young attorney litigation was won or lost on a motion to dismiss, a motion for summary judgment, or at trial, not during document productions, interrogatory responses, or depositions. I have since learned, through firsthand experience in discovery, that discovery is more important than law school classes would leave young attorneys to believe.
Aspiring attorneys never learn the basics of discovery until they are on the job. Sure, law schools provide students with general knowledge about discovery, but they never articulate how such knowledge will apply. One of the first assignments law students are given is drafting an appellate brief where they are given a potentially dense fact pattern that revolves around a rather focused legal question. But where do all of these facts come from? Law students obviously know the answer is discovery, but they never question how they get the documents in discovery.
Discovery as the Trenches
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The reason I consider discovery “the trenches” of litigation is because outside of attorneys and businesses that regularly are involved in litigation, many people do not think, or necessarily even know, what discovery is or how important it can be. Discovery is not what people who watch Suits expect. In Suits, there is the occasional deposition (which lasts for about two minutes of show time), where one of the main characters asks two or three hard-hitting questions, gets yelled at by the deponent (or vice versa), and that’s the end of it. Discovery is so much more than that.
The size of cases can range immensely, but the same general principles apply to discovery. If you do not ask the right questions (both in interrogatories and at depositions), demand the right documents, withhold the appropriate documents, or challenge the appropriate disclosures, a slam-dunk case can become a nightmare. While there are no right or wrong ways to go about any of this, ensuring that you cover your bases is a must, and sometimes answers can come from unlikely sources.
At our firm, we like to get everyone involved in discovery, including law students, paralegals, junior attorneys, senior attorneys, and partners. That is because my colleagues and I know that everyone thinks differently, and having a wide range of views can be beneficial in circumstances like discovery that often may call for more abstract thinking.
While it is true that experience will help an attorney in drafting discovery demands and other discovery materials, brainstorming from other sources can also be useful. While there may be some scenarios where this is not practical, it can be useful to start very broad in discovery and narrow as you deem appropriate.
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Discovery in Practice
Discovery, to me, is one of those things you can only learn from experience. While I was in law school, I cannot recall a single class (at least that I took) that taught how to do things like document demands or taking a deposition. While this may have been my fault for not seeking those classes out, or my school may have had limited offerings, I think these skills should be incorporated into other classes where possible (even though there is no substitute for on the job experience).
I have been fortunate to learn how to conduct discovery from some great lawyers, but it has not come naturally. While it is always important to be courteous and adhere to all the rules regarding discovery in your venue (whether they be the Federal Rules of Civil Procedure, CPLR , Local Rules, or judge-specific rules), the most unnatural part for me has been stepping back on occasion and determining if something is responsive.
While responsiveness is the very first thing you should check, it can be easy to get carried away in privilege checks, or to assume that certain types of documents are responsive when they are not. It is up to your opposing counsel to make sure they cover everything in their demands, and you should not make it any easier for them.
While this is an obvious “tidbit,” it’s a lot easier said than done. Consider when you (or a temp attorney) are reviewing copious amounts of documents, checking for responsiveness and privilege issues. Document demands are often long and narrowly distinct from one another, often leading young attorneys, such as myself, to either assume or infer that a document is covered by the demands as whole, without pointing to a specific demand. Assuming certain things are covered may make the work go faster, but it would be doing your client a disservice to turn something over that is not responsive but “close enough.”
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Discovery may not be one of the first things aspiring attorneys learn, but for young and experienced attorneys alike, it is one of the most important.
Brian Grossman was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at [email protected].
