Litigation can be divided into three relatively distinct phases: the pleading phase , the discovery phase and trial. While the distinction can sometimes be blurred, there is no doubt about these three significant areas of litigation. The average San Diegan has little understanding of the pleading phase. It involves the filing of a complaint followed by answers, cross-complaints and/or attacks on the pleadings (demurs, motions to strike and motions to quash) most of which require a response by the plaintiff and ultimately a hearing before the trial judge. This phase can be remarkably drawn out and complicated, and it is a topic for another article. Trial is, well, trial. It is of course the most well known phase in litigation. The discovery phase is no more or less important. A properly discovered case provides attorneys with the necessary tools to prove a litigant’s case at trial.
However, as attractive as bulldozing your opponent sounds, taking the offensive to this degree is much easier said than done. The problem in the real world, at least for most businesses (AT&T could probably manage), is that guerrilla discovery is no less expensive and time consuming to the propounding party than it is to the answering party. For instance, say a party propounds three hundred interrogatories. Drafting the questions is far easier than answering them so the instinctual desire is to ask away. However, a critical part of discovery is to actually discover things. Presumably, you want the actual responses to the three hundred requests. If you get evasive answers (which is very common) and are unable to convince the other side that it needs to provide additional responses, the only way to obtain relief is via a motion to compel before the judge. In California, a motion to compel further responses to interrogatories requires a separate statement of reasons why the opponent should provide a further response to each interrogatory. This means that for each one of the three hundred interrogatories, you must repeat the interrogatory, repeat the response and set forth your factual and legal reasoning why a further response is being demanded. For three hundred questions, the result is generally a fifty plus page separate statement (in addition to the actual motion) that takes significant attorney time to complete, and the attorney still needs to prepare for and argue the motion before the court. Of course, this embroils the other side further forcing them to oppose in the same manner which in turn furthers the guerrilla motive. Now consider that the other side is itself instituting its own guerrilla campaign. The amount of attorney hours and associated costs can be staggering.
It is common for clients to ask their lawyers to be aggressive with discovery. They see it as a moral victory to force the other side into extraordinary expense. Few realize that the tactic comes a such a high cost and that a considered and focused discovery campaign can be as effective in readying parties for trial. Of course, those with unlimited resources will still find that bulldozing can be quite effective against those with limited means. For everyone else, taking the emotion out of the equation is the first step. The ultimate question then becomes: How much am I willing to spend on discovery? It’s important to understand that most attorneys won’t take business litigation cases on contingency, meaning that they won’t absorb these costs for you.
Most of the time, businesses involved in litigation have limited resources to pay for litigation. They need efficient representation. In such cases, this writer cautions against discovery for the sake of discovery in favor of a focused campaign designed to elicit important facts and admissions. The actual discovery campaign will vary greatly from case to case. An experienced litigation attorney will develop a focused plan that best suits the client’s needs while allowing the client to make informed decisions about what level of discovery is actually needed and desired.
If your business is facing the prospect of litigation, contact a San Diego litigation attorney for assistance.