During the “Discovery” stage of litigation, each party discloses its evidence to the opposing party and simultaneously “discovers” the opposing party’s evidence. Other than trial, discovery is probably the most important stage of litigation because it reveals the strengths and weaknesses of each party’s case and identifies the facts that will be disputed at trial. Discovery can be rewarding for clients (to the extent litigation can ever be rewarding or satisfying) because it is the first opportunity to prove their case or demonstrate that the opposing party’s claims are false.
In discovery, a party may “propound” (or put forward) discovery to the other party, and must respond to discovery from the other parties. In elder abuse and trust litigation cases, as in most civil cases, the primary discovery methods are Interrogatories, Requests for Admission, Document Requests, and Depositions.
Interrogatories are simply questions that the other party must answer under penalty of perjury. We typically begin a case with “contention interrogatories,” which force the opposing party to identify the evidence they believe supports their claims. Simple contention interrogatories in an elder abuse case might be:
1. Do you contend that [client] committer elder abuse.
2. If your response to Interrogatory number 1 is yes, please identify all facts that support your contention.
3. If your response to Interrogatory number 1 is yes, please identify all documents that support your contention.
4. If your response to Interrogatory number 1 is yes, please identify all witnesses that support your contention.
Other interrogatories might be more specific. If an opposing party contests a trust on the grounds of undue influence, we might ask “Were you living with your mother at her home in Walnut Creek at the time she executed her trust,” or “When did you become aware that your mother signed a deed giving you her house in Lafayette.”
Requests for Admission force the opposing party to admit or deny facts at issue in the case. In a financial elder abuse case, we might ask an opposing party to “Admit that on April 1, 2013 you cashed a check in the amount of $100,000 drawn against your mother’s checking account at the Walnut Creek branch of [her bank].”
Document Requests require the opposing party, or a third party such as a bank or hospital, to produce copies of relevant documents. In will and trust contests involving claims of incapacity, we typically request medical records; in cases of fraud or financial elder abuse we often request bank records.
After written discovery (Interrogatories, Requests for Admission, and Document Requests) is completed, we conduct Depositions of the opposing party and all witnesses. At a deposition, a party or witness must appear and answer questions under penalty of perjury. A deposition can sometimes make or break a case because it is usually the first time a party or witness is forced to defend their contentions without substantial assistance from an attorney.
In most cases, there are several sets of written discovery, and depositions may occur over several months. Once discovery is complete, the parties should (at least in theory) be ready to prepare for trial.