interrogatories – Written questions asked by one party and served on an opposing party who must answer them in writing under oath as a discovery device.

redirect examination – Questioning of witness by party that originally called that witness after opponent’s cross-examination.

writ – A judicial order directing a person to perform a specific act.

SAUSA – Special Assistant United States Attorney. A federal trial attorney, appointed by the Attorney General upon recommendation of the U.S. Attorney of his or her district. Usually hired for the purpose of assisting in the preparation and presentation of a special case, or special types of cases.

probable cause – Sufficient legal reason to allow a search and seizure or the arrest of a person.

preliminary hearing – The hearing at which a judge determines whether there is sufficient evidence against a person charged with a crime to warrant holding him or her for trial.

moot – A proceeding which seeks a judgment or ruling on a dispute which does not actually exist. For example, when one party brings a motion to compel the other to answer interrogatories and the other has already answered, the motion is moot.

testimony – Evidence given by a witness under oath. This does not include evidence from documents and other physical exhibits.

subpoena duces tecum - A court order commanding a witness to bring certain documents or records to court.

RICO – Racketeer Influenced and Corrupt Organizations Act. RICO provides for criminal and civil penalties for persons who engage in a pattern of racketeering activity or collection of an unlawful debt that has a special relationship to an enterprise affecting interstate commerce.

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.

For your edification, this is our first in what will be a continuing series of legal terms defined:

Civil Law: Law developed by governmental groups such as statutes, regulations and ordinances enacted by legislative bodies such as Congress, state legislatures, county and city officials. This is different from laws based on custom.

Perjury: False or misleading testimony while under oath to tell the truth. A criminal offense.

Voir Dire: Part of the jury selection process. A number of prospective jurors are selected and seated in the jury box. The judge and/or lawyers ask a series of questions to disclose any predisposition or biases that may impact their judgment. Generally, each party is entitled to three preemptory challenges by which prospective jurors can be removed without cause. If the judge so finds, jurors may also be removed for cause due to obvious bias or other reasons demonstrating an inability to serve.

Waiver: A knowing, intelligent, and voluntary surrender of a known right or claim.

Lay Witness: A person, with knowledge based on his/her first-hand observations, whose testimony is helpful to determine the facts at issue. Liability lay witnesses testify regarding the facts of the accident. Lay damage witnesses testify regarding the plaintiff’s injuries and the effects of those injuries on the plaintiff’s lifestyle.

Mitigate: To diminish or reduce. An injured party has the duty to mitigate his/her damages, including pain and suffering, by taking reasonable steps to get better.

Bench Trial: A case heard and decided by a judge without a jury.

Brief: A written document prepared by an attorney to serve as the basis for a legal argument. It includes a summary of legal points and precedent, together with arguments to be presented to the court deciding the case or a particular issue of the case.

Claimant: A person who makes a claim or asserts a right. The plaintiff in a personal injury case may also be known as the claimant.

Trial De Novo: Means “new trial.” In mandatory arbitration, after the parties receive the award or decision, a party not satisfied with the award may appeal by filing a request for a trial with the Superior Court. The request must be made within twenty (20) days of the award being filed with the court. No information related to the previous arbitration hearing or award from it can be made at the trial.

Adversary system- Basic U.S. trial system in which each of the opposing parties has opportunity to state his viewpoints before the court. Plaintiff argues for defendant’s guilt (criminal) or liability (civil). Defense argues for defendant’s innocence (criminal) or against liability civil) .