By Jeffrey Koenig
Personal Injury Attorney, The Law Offices of Spar & Bernstein
What is discovery and what is its purpose?
Discovery is the phase of litigation in which both sides request information from one another. The purpose is to learn about each position taken by each side, and to get as much information as possible to be used at trial.
In Federal Courts the parties are required pursuant to the Federal Rules of Civil Procedure: Rule 26 to provide basic information, such as witness information, information on whether documentary evidence exists, and if so where it exists, as well as a preliminary computation on damages. After an initial conference the parties are permitted to serve certain discovery demands for information, depending upon the Local Rules and the Judge’s specific rules.
Depositions also take place during discovery. A deposition is question/answer styled inquiry in a room with attorneys for each party and a court reporter taking down every word that is uttered. Your attorney will prepare you on how to listen to the questions and answer only the question that is asked. It is adversarial and not a time to let your guard down.
Despite the polite demeanor of the attorney for the other party, he/she is not your friend and is there to represent his/her client zealously.
During depositions in cases pending in the United States District Courts, attorneys know their boundaries and rarely refuse to allow clients to answer questions—except for the rare occasions which call for an answer that would divulge some attorney-client privilege. Federal practice is very efficient and should be practiced in the NY State Court system…but unfortunately it is not.
In New York State courts, the rules are not set up in the same way.
Parties make demands on one another and the defendants typically stall in the production of responses. There is generally no movement by defendants until you have an initial discovery conference in which the Judge issues a scheduling order with deadlines.
Even at that point, the deadlines have no more significance than a greeting card as defendants typically disregard the order. When this happens, plaintiffs make motion after motion seeking the very discovery which the Court deemed ought to have been disclosed.
When the defendants violate 2-3 court orders (after a couple of conferences and maybe one or two motions), the Judge may issue an order precluding the defendant from offering certain evidence at trial, or even better—striking their answer. When this happens, the defendant cannot contest the liability portion of the case, and can only defendant the damages portion of the case.
Depositions in NY State cases are supposed to be getting better with “new rules” which prohibit attorneys from blocking certain questions, but this is not the case. It is commonplace for attorneys to make speaking objections—giving clues to their clients as to how they want them to respond to a question. Over-zealous defense attorney who block their clients’ answers do so for strategic reasons, and unfortunately often times get away with it.
Despite the shenanigans pulled by many attorneys hired by the insurance company to defend cases like car accidents cases, medical malpractice or labor law cases, a good plaintiff attorney will push ahead and get the information needed to spark a good settlement or have a trial on the issues.