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Leonardo Angiulo: The Discovery Process in Civil Cases

Monday, January 28, 2013

 

When it comes to getting ready for trial, the general rule is that it doesn't matter what you think is going on; it only matters if you can prove it. So the time before trial, which can sometimes be years, should be dedicated to the collection and analysis of evidence.

Sometimes people new to the world of civil litigation are caught unaware by the amount of time that passes between filing a complaint and their trial date. The reality is, however, that many cases are won before opening statements are ever given because of the evidence developed during the pretrial discovery process. This process is governed by the Massachusetts Rules of Civil Procedure. Within these rules are several basic tools that Attorneys have to find relevant and admissible proof of a claim or defense.

Take depositions as an example. This procedure is governed by Massachusetts Rule of Civil Procedure 30 and essentially codifies exactly who is supposed to do what. Many people are familiar with this event where two lawyers sit across from each other, a client is subjected to questioning and a stenographer sits by to record the conversation. Depositions can be helpful because it allows opposing counsel an opportunity to hear what a witness has to say, but also how they will say it if the case goes to trial.

Another common discovery tool are interrogatories. Mass. R. Civ. P. 33 documents how parties can draft up to thirty questions and send those to the opposing party for answering. This is a relatively simple thing that can have significant effect. This series of one liners can help counsel narrow down factual questions for trial and may even be read into evidence at trial to meet an element of proof.

Another helpful provision is Mass. R. Civ. P. 34 permitting requests for production of documents. These requests are similar to interrogatories but, instead of a person providing their own answers, the opposing party responds with physical items. This is where attorneys secure most evidence for admission at trial. Common items produced are things like documentation, photographs and correspondence.

As you can imagine, the rules are in place to ensure consistent opportunities for all parties to litigation. Not only are there standards for how things should happen but there are also consequences for failing to participate. Within Mass. R. Civ. P. 37 are sanctions for all manners of non-compliance. Take, as an example, a failure to respond to interrogatories. This can result in a disputed fact being decided against the non-compliant party, an order barring a party from raising certain defenses or claims, or even a default judgment against the party who has not participated in discovery.

The rules exist because every litigant should have equal opportunity to gather evidence in support of their claim or defense. This opportunity is essential to a fair trial and can make the difference between a victory and defeat.    

 

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