How Parties Prepare for Trial

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The second stage of the court case is called the “discovery” stage. During this part, both sides collect and exchange information about the case, and prepare for trial. This usually includes both gathering evidence to prove the facts each side is presenting, and researching substantive law to clarify the legal issues involved.

There is a dispute because people have different understandings of what happened, and why. A judge or jury starts by knowing nothing about the case. During a trial, each side will tell their version of the story and give evidence to prove that their version is right. Some of this gathering of evidence can be done informally, and some of it may need to be done quite formally, following rules of legal procedure.

During this stage, two main questions should be asked:

  • What evidence can I find to back up my claims?
  • How can I best present my evidence to a judge or jury to convince them that I should win the case?

Informal investigation

Informal investigation includes all information-gathering that a party can do on their own, working with cooperative people or organizations both before and after a lawsuit is filed. This could include:

  • Conducting interviews with eyewitnesses
  • Gathering documents from public agencies, police officers, doctors, etc.
  • Taking photographs of pertinent objects or places
  • Finding out about the other party’s insurance coverage
NOTE: Some of this information may not be permitted for use in a court trial. There are a lot of “rules of evidence.” However, more information is better than less, and some information may be very useful to negotiate a settlement before the trail.

Formal “discovery”

Formal “discovery” is a legal process that can be used after a case has been filed. It includes a set of rules by which one party gains information held by the other party.
Some of the formal discovery tools include:

  • Interrogatories – written questions directed to the other party that the other party must answer in writing and under oath; and
  • Depositions – oral in-person questions that the subject must answer under oath. It may be in the form of a written transcript, a videotape, or both.
  • Subpoenaing – requiring the other side to produce books, records or other documents for inspection (a subpoena is a written order issued by a court compelling a person to testify or produce certain physical evidence such as records).
  • Asking that a document be submitted for examination to determine if it is genuine.
NOTE: In addition to “rules of evidence” about what information may be presented in court, there are also rules about formal discovery. Depending on the type of case it is, there may be limits to the number of questions that each side can ask, for instance, and how long the discovery stage of the case may go continue. It is important to learn and follow these rules.

As information is gathered during this stage, it is not filed with the court. Rather, it must be shared with the other party in the lawsuit. This is to prevent “trial by ambush,” where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s not time to obtain answering evidence.

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