Written Discovery: What is it?

Real Estate Law

The rules governing lawsuits are many and varied. While many people believe that all cases go before a judge and jury, that is not always so. In the context of civil (not criminal) cases, many cases settle without going to trial.

How can that be, you ask? How can the parties know how much to settle for if they don’t “get their day in court” and tell the judge their side of the story?

Well, in civil litigation, we have tools that help us “discover” what happened, who said what, when, and how a case should be evaluated without going to the time and expense of a trial. Not surprisingly, these tools are called “discovery.”

Civil Lawsuit Basics.

But before we discuss discovery, it may be best to give a brief overview of a civil litigation so you can understand how discovery fits into things.

In civil law, an action is brought by the injured party, the “plaintiff”, filing a complaint against the (“bad guy”) the “defendant.” Very briefly, the complaint basically tells the plaintiff’s side of the story. The defendant then files an “answer” to the complaint – admitting or denying the allegations against him (or her) and setting out any defenses or claims against the plaintiff that the defendant has.

After the essential paperwork has been filed with the court and all parties have been “served,” the lawsuit goes into the next phase. Discovery.

Discovery and Written Discovery.

Because the purpose of a complaint is simply to give a defendant notice of what he is being sued for (for example, breach of contract, trespass, conversion, etc.), a complaint is quite frequently fairly general in its facts and allegations. So the law has developed a set of procedures that allow a defendant to inquire more closely into the specifics that a plaintiff is claiming against him. Discovery lets a defendant find out what written, testimonial and other “proof” the plaintiff has to support his lawsuit. Likewise, discovery allows a plaintiff to find out what defenses a defendant has.

The purpose of discovery is to avoid “surprise” at trial. We’ve all seen this in the movies or on t.v.: the courtroom tense. The poor Plaintiff is about to lose her case. The defendant is smiling smugly. Suddenly, the doors bang open and in strides the “surprise” witness who has the damning testimony that will win the plaintiff’s case for her! While this makes for good drama, it’s not actually fair. So the law doesn’t allow it.

Instead, legal procedures allow both sides to issue written (and other) discovery before trial to find out what the other side knows/is going to testify to. Written discovery includes such things as:

  • Form Interrogatories
  • Special Interrogatories
  • Requests for Admissions

These discovery tools allow a party to ask questions of the other side in order to gain more information about what he or she knows about the facts underlying the lawsuit. For example, written interrogatories (which are simply questions) may ask the plaintiff for the names and addresses of any witnesses the plaintiff intends to call at trial and what they will testify about—thus cutting off the “surprise witness” gambit shown on t.v.. Written admissions ask the other side to “admit” to certain facts, both to streamline any trial and to use the information against the party if the matter goes to trial.

If you are involved in a civil lawsuit, you may very well get caught up in written discovery. Discovery is a very important part of any civil litigation as it helps to define and shape the real issues in the case and allows both sides to prepare for trial.

Civil Litigation in Cumming, Georgia.   

The attorneys at the Law Offices of Mark Weinstein, P.C, have experience in all aspects of civil litigation. We are based in Cumming, Georgia, but we serve Atlanta and the surrounding counties.  Give us a call at: 770-888-7707. Or you can contact us here.

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