Conducting focused, directed discovery can lead to less expense, less wasted time and better case preparation. Too often during discovery we act like pigs in a forest searching for truffles. Our heads are down, our eyes are closed and we believe if we cover enough ground we will find something good even if we do not really know what we are looking for. This cover-it-all approach is better designed to protect a certain part of our anatomy than to efficiently discovering useful, relevant facts about our case.
Cover-it-all discovery also leads to two of the biggest problems in discovery: expense and conflict. In a survey of North Dakota District Judges conducted by Jerry Evenson, Drew Imes and me for use in a State Bar Association seminar several years ago, we found that judges had a discovery dispute in 1 out of 4 cases. It was worse in major cases where there was a discovery dispute in 3 out of 4 cases. Disputes are not the only problem. We all know that discovery is a major component of the legal expense regardless of the size of the case. So what do we do about it?
To help stop me from wandering around in the forest, without a plan, looking for something good, I came up with a Discovery planning tool called - REPUR. This stands for RESEARCH - EVALUATE - PLAN - USE THE PLAN - REEVALUATE.
RESEARCH
After the initial interview and review of the case a paralegal and maybe even the attorney has an idea about the legal theories
involved in the case. But, do you feel comfortable that you know what the law requires as elements to prove the case or do you wait until 3 days before trial when you learn, for the first time, what the elements are from looking at the pattern jury instructions you are preparing. You can then only hope you incidentally covered it in a deposition or interrogatory.
To avoid that last minute “oh crap” feeling, do at least a little research and list the elements you will need to prove what you believe are the theories of the case. That list can come from the North Dakota Pattern Jury Instructions, statutes or case law. When you know what it is you need to look for during discovery it is a lot easier to find it.
EVALUATE
Now that you know what it is you need to prove, look at your case. There are probably facts you need which are already in an admissible form and for which you will need no further proof or support. Simply list the established facts, witnesses and exhibits under the relevant element on your list and move on to the disputed facts and elements you need to support. As you can see you are developing a trial notebook at the same time with little or no extra effort. Along with the trial notebook you have also developed your probable jury instructions, your exhibit list, and your witness list.
PLAN
You know what it is you need. You know what you have. Now you need to develop the plan to obtain witnesses and exhibits to support the rest of the elements. Too often we forget that the only way information gets before the judge or jury is from witnesses’ testimony and admissible exhibits. If the “facts” you rely upon are just from argument or inference, the appellate court is sure to let you know if the judge and jury don’t. Our discovery plan must be developed to find the relevant facts and how they can be presented. A “fact” without a witness, exhibit or admission will not allow you to check off that element of proof.
Simplifying
Discovery
BY KENT REIERSON