How failures in the discovery process can be devastating to clients

Once a legal action is scheduled for trial, meaning the complaint has been filed, the summons served, the answer received and opening arguments scheduled, it could be said that the real work officially begins for the attorneys.

That's because they will need to start discovery in earnest. For those unfamiliar with this term, discovery is the legal process whereby both sides exchange information about the evidence and the witnesses they plan to present at trial.

The purpose of discovery is to prevent what is known in legal parlance as "trial by ambush," meaning situations where one side isn't made aware of a witness or evidence until trial thereby depriving them of the opportunity to prepare or respond.

As to the more common methods of discovery, they include just some of the following:

  • Depositions: Out-of-court statements made under oath by individuals involved in the case that are recorded, and used for preparation and/or at trial
  • Interrogatories: Written questions submitted to the other side that must be answered under oath and by a certain date
  • Subpoenas: Written orders issued by a court compelling the provision of named physical evidence or testimony

As familiar as the discovery process should be to trial attorneys, the reality is that mistakes occur on a regular basis and they can be incredibly costly.

For example, consider an attorney failing to conduct a reasonable inquiry into whether all of the necessary documentation had been produced by the other side or an attorney failing to depose parties with information vital to the case.

If you have reason to believe that your attorney has failed to properly investigate or conduct discovery, and this failure has had a detrimental impact on your position, consider speaking with a skilled legal professional to learn more about your options for pursuing a legal malpractice claim.

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