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February 13, 2024 Feature

Using Discovery Effectively at Trial

Michelle Rapoport
Thinking about discovery from the vantage point of the jury helps to focus on the right questions, asked in the right way.

Thinking about discovery from the vantage point of the jury helps to focus on the right questions, asked in the right way.

Guido Mieth via Getty Images

Most jurisdictions allow liberal use of discovery in state and federal courts. When used properly, broad discovery promotes judicial economy by helping the parties evaluate their case. The process exposes the parties to the strengths and weaknesses in their case, as well as that of their opponents, which can facilitate settlement. At times, discovery can expose a pivotal piece of evidence that can make or break the case. On the other hand, if discovery shows the allegations have no legs, a motion to dismiss may be in order. Broad discovery also holds attorneys accountable to facts and, at least in theory, allows juries to decide the case based on the evidence rather than attorney storytelling.

It is often unclear whether a case will end up in trial until the litigation is well underway, and sometimes very close to the trial date. Visualizing how a jury will view the evidence is a helpful lens through which to approach the discovery process throughout the litigation.

Early in my career, a couple of years after starting my first job as a litigator, I and another attorney at my firm handled a contentious trial. We represented a national retailer against allegations of discrimination. It was an ordinary case, ripe for resolution short of trial, but it did not resolve, and so we were off to trial. At some point during our six-week trial, our opponent plastered one of our discovery responses on a poster board and displayed it to the jury to show what they claimed to be a factual discrepancy between our position at trial and in discovery. Until trial, the issue was a trivial one.

Seeing our firm’s work product there, enlarged and displayed, I wished the language was different to make our case more persuasive at trial. But that moment was also instrumental in shaping the way I approach discovery. Since that day, I have consistently asked myself the following two questions when approaching discovery. First, are we saying anything in our discovery responses that might contradict any other position we are taking? Second, on key issues, are we responding in a way that is clear and simple and that will resonate if shown to a jury?

Charting the Course

It is easy to view discovery as a slog to “get through.” Many lawyers propound a nearly identical battery of requests in every case, which have little to do with the particular facts at hand. Similarly, many lawyers respond to all discovery requests with a familiar mix of boilerplate objections and responses that are intended to obfuscate the issue.

Instead, attorneys preparing discovery should focus on the factual background of the case and the theory of liability. What are the elements of the case? How are they going to prove each of the elements? What are the defenses to the claims, and how can they be overcome? A clear focus on the facts, the theory of the case, and the law should guide discovery and continue to do so throughout the litigation process, evolving as additional information is learned during the discovery phase. Jury instructions for the claims litigated can provide a helpful road map.

Generic document requests that will glean little useful information should be avoided. Rather than asking for “every document relevant to the allegations in the complaint,” attorneys should think about exactly what it is they need. Responses to discovery should be equally deliberate. These should be provided only after interviewing witnesses, reviewing relevant documents, having a coherent theory of the case, and understanding the weaknesses in the case.

Interrogatories should be simple and easy to understand. It is helpful to imagine the jury as the audience. How will the interrogatories sound if they are read out loud? They should be easy to understand for someone who is not a lawyer. They should be drafted in a way that requires a short, clear answer and that avoids objection due to vagueness or complexity.

Depositions are one of the most effective tools for getting useful information in discovery. Depositions provide an opportunity to speak directly to witnesses, get information unfiltered by their attorney, box witnesses into a position, and better understand the scope of the case. But given the dynamic nature of depositions, it is sometimes difficult to evaluate how responses will look in a written transcript. Sometimes, as the deposition is taking place, it may seem as though the questions are eliciting useful admissions and will play well at trial, but when we review the transcript, we see the testimony is not clear at all. The question asked at the deposition may have been ambiguous or too wordy, making it difficult now to understand what question the deponent was answering. It is important to make sure both the question and the answers are clear. Consideration should be given to how the questions will sound at trial, where they will be heard by nonlawyers.

Requests for admission can also be useful to narrow the scope of issues for trial, although they are in themselves unlikely to be admissible at trial. On the plaintiff side, attorneys sometimes go too far, using requests for admissions as an attempt to dispose of the case altogether, perhaps hoping that, through a calendaring glitch, the response will be delayed and the request will be deemed admitted. On the defense side, there is sometimes a tendency simply to deny, no matter what. For both sides, requests for admission can be a useful way to narrow specific issues in the case. Even for the defense, this type of narrowing may be a useful way to dispose of or narrow claims that carry the potential for attorney’s fees.

I recently mediated a case in which the plaintiff alleged two types of claims. One of the claims presented a strong chance of success for the plaintiff but had minimal value. The other claim was weak, but the scope and potential for a loss were greater. A request for admission on a limited issue would have been helpful to the defendant perhaps more than the plaintiff, as it would have put the smaller issue that was a “slam dunk” to rest, allowing the parties to focus on the other, where liability was contested.

Discovery serves an offensive purpose, helping the parties to learn important information about their case, which will either support their claim or need to be overcome at trial. Defensively, it helps ensure the opponent is foreclosed from presenting evidence or witnesses not previously disclosed during discovery. Attorneys should understand the case well enough to tailor requests to learn specific information that will advance the case. At the same time, broad requests that serve as a “catchall” should be utilized to ensure all relevant information is provided in advance of trial.

Putting the Pieces Together at Trial

Trial is where it all comes together. This is where a thorough approach to discovery will minimize surprises and, if one arises, make it easier to dispose of. It is also where failing to fully and strategically engage in discovery can be a real detriment.

As the close of discovery nears and trial preparation begins, attorneys should review which pieces of evidence they intend to use and make sure they have fully disclosed anything that requires disclosure. In fact, it is often advisable to disclose documents a party intends to use at trial, even if disclosure is not strictly required, to avoid a later objection and potentially unpleasant surprise at trial. Attorneys should likewise review discovery responses provided by the other side, follow up where an incomplete response was previously provided, and demand supplemental responses where appropriate.

A key part of trial preparation is ensuring the trial team is deeply familiar with the discovery propounded and responded to in the case. They should know exactly what discovery they propounded on their opponent and the responses, and, just as importantly, where to find it if the need to reference it arises during the proceedings. This also means the trial team should have the same level of familiarity and access to the discovery their opponent propounded.

Organization is key to ensuring the trial team can quickly respond to a dispute in the heat of trial. Opposing counsel might claim a piece of evidence was not provided and should not be introduced at trial. A chart listing all requests to produce and all discovery propounded and responded to should be prepared in advance and readily available at trial.

It is a good investment of time, even in the frenetic pace of trial preparation, to review the discovery exchanged in the case with an eye toward ensuring a full understanding of all the issues the other side might raise. Sometimes, what seems like a tangential issue can become a focal point at trial and leave counsel unprepared.

Careful review of deposition testimony is one of the most important aspects of trial preparation. In most cases, the depositions will have taken place months or sometimes years before trial, so memories of what was said at deposition will have faded by the time the trial comes around. In preparing for cross-examination of witnesses, deposition testimony can serve as a guide. Key issues in the case should have been explored in deposition, and the transcript should be marked and ready to go in case of contradictory testimony at trial. Recording a video of the deposition can be particularly effective, especially in contentious cases. When important witnesses contradict their prior deposition testimony, impeaching by using deposition testimony is vastly more impactful when the jury can see the witnesses contradicting themselves rather than hearing an attorney dryly read from a transcript. However, in a post-pandemic world where Zoom depositions are ubiquitous, recorded Zoom depositions may not be admissible if the party taking the deposition failed to follow the formalities of having the recording certified by a qualified person. Rules vary on the use of depositions and how they are introduced.

An important part of preparing witnesses for direct and cross-examination is having them review their deposition testimony in the case. Their prior testimony will shape their testimony on the stand, helping them contour their responses in a way that will not lead to contradictions in front of the jury.

Practically speaking, a binder for each witness can be a helpful tool at trial. The binder should contain the witness’s deposition transcript, questions for direct or cross-examination, and any exhibits the witness may be questioned on, including prior declarations provided in the course of litigation. Any documents the witness created or authenticated should be included.

It is often difficult to predict how discovery may be useful at trial. In one particularly difficult case I handled a few years ago alleging our client failed to accommodate an employee, leading to grievous injury, plaintiff’s counsel sought a heap of discovery. The connection between the documents seemed tenuous, the quantity of documents was voluminous, and the documents were difficult to pull. We fought the production, but the judge required our client to comply. We provided the documents, and opposing counsel never mentioned them again, including at trial. Those documents ended up being instrumental to our case, however. They contained details about the work schedules of several individuals the plaintiff accused of wrongdoing and allowed us to show they were not at work when the events in question took place, which discredited the opposing party’s testimony and helped us prevail.

Conclusion

The discovery process and thorough preparation for trial will allow attorneys to easily point to any contradictions in the other side’s case and foreclose undisclosed witnesses or evidence at trial. Thinking about discovery from the vantage point of the jury helps to focus on the right questions, asked in the right way.

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Michelle Rapoport

Solo Practitioner

Michelle Rapoport is based in California and focuses her practice on employment litigation in state and federal courts and in binding arbitration. Rapoport has served as general counsel of a national health care organization and was also a partner with an international labor and employment law firm. Rapoport has litigated hundreds of single plaintiff and class action cases and has tried cases in state and federal courts and in arbitration.