By: Joe Arispe
Discovery – The most favorite part of the case…said no paralegal ever. (Smile). Imagine this, a case is placed on your paper-filled desk with a sticky note requesting production, interrogatories, admissions, and disclosures be drafted. Many of us have been in this position asking ourselves, “Where do I start?” Is that the right question though?
Most of the time when the quest for discovery begins, the origin is one of the many litigation support software programs available to assist in the efficiency of drafting discovery. While I am not against utilizing the available programs, because after all, they are often a blessing, I believe it is still important to roll your sleeves up and know your case, otherwise, time is spent and money is wasted.
Where do I start? While at times, the request from the attorney may seem overwhelming, and at times, even demanding, step back and ask yourself, “What are the issues of this case?” The reason for this question is simple; because once the contested matters are understood, then and only then, will you be able to effectively prove your case through discovery. Another advantage is that it could also expose the weaknesses in opposing counsel’s case, as well.
What case was that? Aside from the infamous litigation software programs, another widely recognized starting point is, “This case is a lot like Jane Doe’s case.” I am not disowning this approach, it happens to be my favorite (I like to save time/effort as much as the next guy) but it too has its own pitfalls. The forgotten key factor many times (one which I have definitely forgotten on occasion), is no matter how similar Jane Doe’s case may seem to John Doe’s case, every case is different. Every case has a variation of facts, which is what makes each case unique.
Daunting, but important. The completion of discovery could be compared to writing an article or any other semi-daunting task. The painstaking process of all that goes into the preparation of discovery is nothing short of exhausting, yet incredibly important and interesting, nonetheless. In my experience, I find discovery is nothing more than the art of storytelling. Each respective client has the setting and you, as the paralegal, author the plot. Oh how quickly that plot thickens and dives into a swirling abyss of interesting issues, at times. Each attorney edits the story (usually in his or her favor, because lawyers don’t do unethical things like lie), and when it is ready, a press release is set (a trial date). Sometimes what is assumed to be a short story, can turn quickly turn into a best-selling novel soon to be read to twelve people whom you’ve never met. Whether they believe you or not is irrelevant, what matters is whether or not they buy it.
The Worst Day Ever Could Happen to You. Picture this – On the first day of trial you and your attorney are walking down the hallway of the courthouse approaching the courtroom. As you get closer, you notice there are approximately fifteen men and women staring at you and your attorney. Now, you know this case inside and out and to your current recollection no witness list was given by opposing counsel. In an attempt to reassure your sanity, as you impatiently rush to sit down, you immediately check for a witness list from the other side. All the while you are thinking, “I know I did not forget about this stupid witness list. There is no way I could’ve overlooked it. There is no way this is happening to me right now.” Feeling distraught for a moment, reassurance returns, as you realize you cannot locate the witness list – likely because it does not actually exist. To be thorough, you flip the nicely tabbed trial notebook open to opposing counsel’s response to disclosures.
The moment of truth is near, your fight or flight response has kicked in as high as it can go. As the one page that separates you from being fired or remaining hired will be known in a matter of nanoseconds. What say ye conscience and sanity? We, your conscience and sanity, find no witnesses listed in the response or the supplemented answers to the disclosures from opposing counsel. Thank you, God – you really had my back on this one. (You resume breathing.)
Finally, your case is up. Containing your excitement, you alert the attorney immediately. As testimony commences, the spoken words from your client tints a bad picture of the soon to be ex-husband. Observing opposing counsel, it is almost as if she expects it. Finally, their client testifies. While their story had a slight disparity of what went on through the course of the marriage, facts are facts, and even great storytellers can’t avail with bad plots. Your moment of glory is rapidly approaching. Opposing counsel’s client literally is cornered and has no way out. Of course that isn’t how opposing counsel and her client see it. As opposing counsel boldly stands up, her client lowers his head, making his way back to his seat, she announces, “I’d like to call my first witness.”
What seemed like a long pause, you nudge your attorney, “Objection!” he shouts. The judge looking puzzled, asks counsel to approach. The argument is made that since there wasn’t proper notification of the witnesses from the other side, it constituted unfair surprise and would instigate a trial by ambush. The witnesses are excluded. (Ta-ta-ta-ta! Did I mention my status as a current legal super hero? Smile.)
Nobody…and I mean nobody…wants to have an embarrassing moment similar to that one. While piggy backing off of what the other side files and spinning what is virtually the same line of questioning back to the other side isn’t wrong, it has the potential for devastating dangers.
Remember this. The next time a case is plopped or thrown (Ahem, I mean gently placed) on your desk, start with the basics. Begin with the contested issues of the case. If the case is complex and the contested issues are distorted or unclear, ask the attorney what his or her thoughts about the facts are. The point at which you know your case really depends on you and the role you play as a paralegal. For me, it is after the discovery phase that I can honestly say I know the case. To say otherwise would be a premature statement. No issues – no case. Know the issues – know the case.
A final thought. Most of us do things without thinking about it, from the simplest of task such as putting on your shoes to commuting the same route to work every day. The reason we do this without thinking and feeling overwhelmed is because it has become a habit. There are a set of steps we follow to maintain a state of balance. The same can be held true for tasks such as drafting discovery. Instead of feeling overwhelmed and stressed about what actions opposing counsel may or may not take, develop a methodical set of steps to follow in order to determine the issues in a particular matter. Do not waste your time worrying about what ammo the other side may or may not have. As long as your gun is clean, loaded and ready to shoot, that’s all that matters. Worry about your side and everything it entails, for better or worse. After all, you never know, you might walk into trial locked and loaded, while the other side may still be searching for their ammunition.
Be proactive during litigation. Don’t be the paralegal with a legal pad of excuses as to why certain questions cannot be answered. Avoid being complacent. Will Rogers once said, “Even if you’re on the right track, you’ll get ran over if you just sit there.” So formulate a plan of attack, grab that file, and dig in.
Let the discovery games begin!
Joe Arispe is a paralegal working at Meyer & Meyer, P.C., in Houston, Texas, where he worked in the areas of family law, probate, civil litigation, and personal injury. He has been a practicing paralegal for ten years. Mr. Arispe is also a certified mediator and EMT-Basic.
Wishing all of our discovery preparing friends in the land of legal an absolutely brilliant day -papers, piles, post-its, and all. (Was that a plop signaling the start of the paralegal discovery games? Don’t answer that…)
We’ll see next time!