After a lawsuit is filed, the court will assist the parties in setting a schedule for the litigation. One of the key pieces of this process is discovery. Discovery is the process by which each side gains knowledge about the occurrence and the parties. This can be a tipping point in the litigation for either side or it may simply confirm what each party already suspected. In either scenario, discovery will serve to establish what each side will be able to prove at trial and how each side will prove it.
Case Management Conference And Scheduling
After the defendant has filed its answer, the court will set up a case management conference with all parties, pursuant to Section 60-216 of the Kansas Statutes. This is a meeting with the judge that will preside over the trial that sets out a rough timeline for the litigation and seeks to make the process as amicable as possible. This meeting will generally be set within 45 days of the defendant filing its answer, though this may be pushed back by the court in special circumstances. The case management conference will seek to identify the disputed issues or facts in the case, determine if some form of alternative dispute resolution will be ordered, establish a date for trial, and set up guidelines and dates for discovery. These dates and deadlines are generally a rough schedule, subject to changes based upon the needs of the judge and the parties as litigation progresses. The date of trial picked by the court will depend on a number of factors, including how complex the case appears to be and how many other cases the judge has on the docket. Thus, in a larger county such as Wyandotte or Johnson, the trial may not be scheduled for well over a year after the conference. Even in smaller counties with lighter dockets, a trial date will generally be at least six months after the conference.
Discovery is largely conducted in two forms: written and non-written. Written discovery includes requests for production (commonly referred to as “RFPs” by attorneys). These powerful tools require a party to turn over documents that are “responsive” to the request, which can cover a wide array of topics. Two important factors limit which documents are available for production: the documents must be sufficiently related to an issue of the law suit and must not be protected by any “privilege” Kansas law recognizes. This first limitation is generally less of a point of contention, though it is important to note that this is a broad grant. A requesting party is entitled to documents even if the rules of evidence would not permit them to be used a trial. Privilege, on the other hand, is likely to be quite contentious. The privileges recognized in Kansas are outlined by statute, located in Chapter 60, Article 4 of the Kansas Statutes. For example, documents created by an attorney in anticipation of litigation are protected, as are exchanges between the attorney and client.
Interrogatories are another important component of written discovery. Interrogatories (commonly referred to as “rogs” by attorneys) are written questions which must be answered in writing and under oath. These are powerful tools of discovery, as a party will be forced to commit to an answer concerning the specifics of the occurrence. If the party attempts to change the story at trial, the answers to the interrogatories may be presented to the jury to show inconsistency by that party. Interrogatories are subject to the same limitations as requests for production—sufficient relation to the issues of the suit and protections for privileged information. The Kansas Supreme Court has established an additional limitation, via Rule 135: in civil cases, including personal injury cases, a party is limited to 30 interrogatories. A court may allow additional interrogatories, but the requesting party must establish why it needs these additional questions.
A party serves written discovery upon a party by send the requests to the party’s counsel. Responses are due 30 days after the party receives the requests. Each request for production or interrogatory must be answered or objected to. Objections are based upon the limitations discussed above, as well as violations of other procedural rules. For example, if a party submits 31 interrogatories, the receiving party may object to the last interrogatory because it violates Kansas Supreme Court Rule 135. It is very important that a party raise these objections, because failure to do so waives the objection and forces the party to disclose the information even though it may be privileged.
Simply because a party objects does not end the matter. If the opposing party believes the objection is invalid, it may press the issue. Gamesmanship and strategy come into play here, with an experienced lawyer bartering for information and reaching agreeable disclosures. If the parties cannot reach an agreement, they may be forced to ask the court to solve the dispute. This is accomplished by filing a motion to compel discovery. The court will hear each side and determine the merit of any objections based upon the law concerning the claimed privilege. Though strategy plays into discovery, an attorney cannot simply object to annoy the opposition. Courts have little patience for these tactics, and can impose fines, known as sanctions, upon a party that employs meritless objections.
Though several types of non-written discovery are available to parties, depositions are the most common and the most powerful. A deposition mirrors testifying at trial, and the parties, witnesses of the occurrence, and expert witnesses may all be deposed. A party is sworn in, and must answer the questions of the opposing counsel under oath. A court reporter is also present, and just as done at trial, every word of the questioning is taken down verbatim. Just as with written discovery, any answer may be introduced at trial, so a party will not be able to shake an answer given at a deposition without appearing inconsistent to the jury. Like trial, an opposing party’s counsel may object to questions or conduct at a deposition. However, depositions are more “open” than trial, allowing for further questioning than would be allowed in court. Thus, the most common objections made at a deposition involve privileged information. Just as with written discovery, a court may ultimately require a party to answer a deposition question and may punish meritless objections or inappropriate behavior at a deposition.
Discovery is sometimes known as the “trenches” of litigation. This is because discovery is the means by which information is gathered and each party begins to understand how strong the case will be before a jury. Discovery is also a period of great strategy in litigation. Strong counsel will be able to use discovery to better understand the strengths and weaknesses of each case, and to determine the value of a claim so that a fair settlement can be reached.
For more information on the next step of the Personal Injury Trial Process, please see the below link.
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