Preparing evidence in order to be ready for trial is the most time-consuming and challenging part of the litigation process. Mastering the record and identifying the evidence in the record that is essential to the advancement of a party's legal position is paramount in conducting litigation successfully. The process of assembling and evaluating evidence before trial is referred to a the discovery process. This article is written with the defence's situation in that process in mind, but much of it applies to the plaintiff (or the party who filed the lawsuit) as well.
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Things you need
- The rules of civil procedure for your jurisdiction
Gather and assemble all of the documents associated with the case. This includes all documents in your client's control and all documents in the control of the opposing party. Serve document requests on the opposing to party to obtain the documents the party has. Your opposing party is legally obligated to make copies of all relevant documents available to you. This includes documents and information maintained in an electronic format. Document requests in federal cases are governed by Fed. R. Civ. P. 34. If your is a state case, consult your local rules for specifics on how the requests must be drafted and served.
Gather all testimony and statements associated with the case. This is a two-step process that involves both written discovery and the conducting of depositions. First send out interrogatories (a fancy word for questions) along with your document requests. The interrogatories are a chance to ask the other party to answer whatever questions you want about the case in the form of written questions. Interrogatories are governed by Fed. R. Civ. P. 33 in the federal system. After you have answers to your written discovery requests, you should depose the central witnesses for your opponent's side. Depositions are the chance for you to sit down with the witnesses against your side before a court reporter and see what the witnesses would testify to at trial. Fed. R. Civ. P. 30 governs the taking of depositions and gives specifics on how to get a witness to appear at his or her deposition.
Assemble all documents, and answers to interrogatories and order transcripts of all depositions. Go through all of these materials carefully and note which documents and statements aide your defence. Also make note of the documents and statements that your opponent is likely to rely on. Look for evidence to rebut or otherwise discredit the evidence you expect your opponent to rely on. Once you have identified all of the documents and statements you intend to emphasise at trial, put together a binder or portfolio of copies of those documents and passages of depositions with easy-to-read notations of where those pieces of evidence appear in the record. This will help you stick to your main points while the trial is conducted.
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