STEP 8 - DISCOVERY AFTER FILING SUIT

Once a lawsuit is filed, the court will aid both parties in a setting a schedule for litigation. Discovery is one of the main components of this process. Discovery is defined as the process by which each side gains knowledge about the incident and the opposing parties. Discovery might reveal new information about the opposing party or it might simply confirm what each party already knew. Regardless, discovery will serve to determine what each party will be able to prove at trial and how each side will prove it.

CASE MANAGEMENT CONFERENCE AND SCHEDULING

A case management conference with the parties involved (pursuant to Section 60-216 of the Kansas Statutes) will be set up after the defendant has filed an answer. A case management conference is a meeting with the judge that will preside over the trial. It sets out a rough timeline for the litigation and is meant to make the entire process as cooperative and easy-going between the parties as possible. This meeting with the judge is generally set within 45 days of the defendant filing the answer; however, the meeting may be pushed back for special circumstances. Another purpose of the case management conference is to determine the disputed issues and facts of the case, figure out if some alternative dispute resolution will be ordered, ascertain a date for trial and create guidelines and dates for discovery. These dates and deadlines are normally not set in stone, subject to change based on the needs of the parties and the judge as the litigation progresses. A number of factors determine the date of the trial, such as how many other cases the judge has on the docket and how complex the case appears to be. So, in a larger county such as Johnson or Wyandotte, the date of the trial may not be for a year or more. With this said, even the smaller counties with lighter dockets might not be able to hear a case for at least six months.

WRITTEN DISCOVERY

Discovery encompasses two forms: written and non-written. Requests for production (“RFPs”) are included in written discovery and require a party to hand over documents that are “responsive” to the request. These documents can cover a wide variety of topics and there are two important factors that limit which documents are available for production: (1) the documents must be sufficiently related to an issue of the lawsuit; and (2) the document must not be protected by any Kansas recognized “privilege.” Not much argument occurs regarding the first limitation; however, it is important to note that it is a broad grant and a requesting party is allowed to documents even if the rules of evidence would not permit the documents to be used at trial. On the other hand, much contention arises out of the second limitation, privilege. Chapter 60, Article 4 of the Kansas Statutes outline the privileges recognized in Kansas. For example, exchanges between the attorney and client and documents created by the attorney in anticipation of trial are both protected.

Written discovery also includes interrogatories and these are an important component. Interrogatories (“rogs”) are defined as written question which must be answered in writing and under oath. Since the parties will be forced to give an answer regarding the specifics of the incident, interrogatories are an important part of discovery. If a party changes his or her story at trial, an attorney may present to the jury the party’s answers to the interrogatories. The same two limitations for requests for productions are also used for interrogatories. However, the Kansas Supreme Court has created an additional limitation for interrogatories. According to Rule 135, in civil cases (including personal injury cases), a party is limited to 30 interrogatories. Nonetheless, a court may allow additional interrogatories, but the requesting party must show why it needs additional interrogatories.

In order to serve written discovery, the party’s counsel sends a request to the opposing party and responses are due 30 days after the opposing party receives the request. In the response, the opposing party much answer or object to each request for product or interrogatory. A party may object if one of the limitations explained above is violated or if other procedural rules have violated. For example, considering the Kansas Supreme Court’s rule of allowing only 30 interrogatories, if an opposing party receives 31 interrogatories, they can object to the last interrogatory. If the opposing party fails to object, objections are waived and the party will be forced to disclose information even though it may be privileged.

The matter does not end just because a party objects. A party may press the issue if it feels like the objection was invalid. This is where having an experienced lawyer is beneficial because he or she can negotiate for information and reach agreeable disclosures. A lawyer does this by filing a motion to compel discovery. After this motion is filed, the court will hear each side and determine the merit of the objections based on the claimed privilege. Even though strategy is a big component of discovery, a lawyer cannot object just for the sake of objecting. If a lawyer does do this, the court may impose a fine (known as sanctions).

NON-WRITTEN DISCOVERY

The most common and powerful form of non-written discovery is a deposition. A deposition is similar to testifying at trial. Those that may be deposed are the parties, witnesses of the incident and expert witnesses. In a deposition, the party is sworn in and must answer the opposing counsel’s questions under oath. A court reporter is present at the depositions and every word is taken down. Any of the answers may be introduced at trial so a party cannot change his or her answer at trial because a jury will find that to be inconsistent. Similar to a trial, an opposing party’s lawyer can object to conduct or questions. However, unlike a trial, depositions are more open and allow for further questioning than would be allowed at trial. Privileged information is the most common type of objections at a deposition. Furthermore, a court may force a party to answer a deposition question and may potentially punish meritless objections or inappropriate behavior.

Since discovery is a means by which information is collected and allows each party to get a grasp on how strong the case will be before a jury, discovery is sometimes known as the “trenches” of litigation. Additionally, since discovery is a period of strategy, strong experienced counsel will be able to understand the strengths and weaknesses of the case and determine the value of a claim so that a reasonable settlement can be reached.