Trial Magazine

Trial lawyers are the first to volunteer for hard tasks: We file hard cases, delve into research in complex fields, and take on world-renowned expert witnesses. We work tirelessly to get the best results for our clients. So why do we often drag our feet in answering discovery, when answering it timely, fully, and completely will move our cases more quickly to resolution?

If a case is grounded in good facts and you want it to move expeditiously forward, you must answer discovery thoroughly and as soon as possible. If you don’t, you will get lost in a never-ending cycle of motions for extensions of time, conferral letters, and motions to compel. That costs time and money.

Discovery is painful, tedious, and annoying—but also necessary. You want every single piece of discovery opposing counsel has. The best way to get that is to have clean hands in asking for it. Otherwise, you’ll likely get nothing—or the court will order defense counsel to produce some, but not all, of what you seek. Think about how many times you’ve been at discovery hearings about a defense failure to produce and defense counsel’s response is: “But, Your Honor, she has not given me x, y, z.” Produce what the rules support, and preserve a good argument for the defense to do the same.

Use client questionnaires. Start answering discovery when you sign the plaintiff as a client and take on the case. Know what defense counsel will ask for and be ready. Provide your clients with a tailored questionnaire when they engage you. The questionnaire should include what you anticipate needing to answer discovery. For instance, in a personal injury action, you want a list of all medical providers who provided care for the injury at issue. If your client has a lost wage claim, you’ll also want a list of their previous employers and current employer. Go through the questions with them—or have someone in your office do so—to ensure complete answers.

In the types of cases I handle, defense counsel typically request medical records and bills in discovery. So I ask in my client questionnaire what medical records and bills exist—then I order them. When discovery requests come in from the defense, I can easily provide answers and attachments of documents I previously obtained. By asking clients these questions early, you can serve timely (and maybe even early) responses. If you wait, you are setting yourself up to provide incomplete answers or to require extensions.

Identify problems. This early start on discovery allows you to identify problems and vet them before any deadlines to provide information to the defense. You’ll also be fully armed for client, defendant, and expert depositions. If the facts you discover support your case, you should want to share them with the other side. But if they are not helpful or even hurt the case, you may need to talk to your client about the merits of the claim before moving forward. For instance, if you obtain medical records in your personal injury action based on the medical providers identified in the questionnaire and they disprove your client’s injury as being related to the alleged negligence, that is something you need to know before continuing with the case.

Endgame. I am a big believer in agreeing to provide information to the other side presuit to determine whether settlement can occur without litigation. The end goal is recovery for your client, and the other side will get the information anyway. Assuming the facts are good—which is why you are pursuing the case in the first place—produce the information. Then you can settle early if possible. If you don’t have the information, you don’t have this option.

Answering discovery promptly and completely also allows you to push defense counsel through conferral letters and motions to compel to do the same. In addition, you’ll gain a reputation for answering discovery and requiring the same of your opposing counsel. You will be known as someone who files strong cases and is not afraid of their own facts. You will begin to get more complete answers and less pushback.

Make discovery work for you and not against you. The recipe is simple: select cases that have strong support; get facts and documents early; and answer discovery promptly, fully, and completely.

Kristen L. Beightol is a partner at Edwards Beightol in Raleigh, N.C., and can be reached at klb@eblaw.com.