Informal Discovery: An Effective Strategy and Cost-saving Solution
Corey David Kintzer is an assistant attorney general in the Internet Enforcement Unit of the Consumer Protection Division at the Texas Attorney General’s Office. He may be reached at firstname.lastname@example.org.
The most expensive aspect of most cases is formal discovery, yet attorneys often overlook the potential for less costly informal discovery prior to or shortly after commencing formal litigation.
Informal discovery begins from the first moment a case is handed to the attorney or from the moment a potential client walks into the office. As the client’s story unfolds, you as the attorney must determine what facts to gather. If you are the plaintiff’s attorney, you will continue this process of outlining potential discovery until the moment a complaint or petition is filed. If you are the defense attorney, the window is often narrower, as little time often passes between commencement of the action and the initiation of formal discovery.
Once you have verified all the elements of each potential claim, remedy, counterclaim, and possible defense (verification can often be obtained through pattern jury instructions), you can then determine the fact sources from which each element can be proved or disproved.
Typically, sources for obtaining proof are the client, the opposing party, third-party witnesses, experts, and any relevant documents. Focus any informal investigation on those facts that are both favorable and unfavorable to the case. Only after discovering those unfavorable facts can you truly evaluate the case and begin the search for those facts that negate the effects of any damaging information.
Also, evaluate fact sources broadly, paying special attention to those typically overlooked sources of information, such as electronically stored data in email messages and portable digital media devices in the possession of the client or any cooperative witnesses.
After identifying each source of relevant, informally obtainable information, determine how to proceed with acquiring the information important to the case. Here, the most common methods of investigation are client and third-party witness interviews, documents obtained by or provided by the client and/or neutral, third-party witnesses, and expert witness interviews and retention.
Witness interviews and document requests performed prior to suit and early in the investigation are often preferable because remembered facts are closer in time to the actual event. Also, informal discovery is less costly, and third-party witnesses tend to be more cooperative at this earlier stage of the proceedings. Furthermore, both the target of the investigation and/or opposing counsel usually need not be privy to such an investigation prior to suit.
The advantages to engaging in informal discovery are numerous. An attorney can often obtain vital information at a dramatically lower cost than in formal discovery, and the information acquired is often more reliable. In addition, having a head start in the fact acquisition race is invaluable. As stories, witnesses, or facts change or are modified, the process should likewise change. The depth of every attorney’s informal discovery should be all encompassing, covering as many elements of every claim or defense as possible. After completing a thorough informal discovery, you will have a significant advantage over opposing counsel and have saved the client from at least some of the unnecessary costs associated with formal discovery.
• 171 Ways to Improve Your Discovery Techniques: A Treasury of Ideas from Leaders in the Section of Labor and Employment Law (DVD Package). 2003. PC # V03WIDD. Center for CLE and the Section of Labor and Employment Law.
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