December 11, 2006, by John A. Lassey

 

There are basically two goals in the discovery phase: (1) to thoroughly check out and investigate all of the facts that are likely to be presented at trial; and (2) to evaluate the case for settlement potential. Discovery normally consists of both written discovery and depositions.

Written discovery can take the form of interrogatories or requests for production of documents. Each side is entitled to serve upon the other written questions (interrogatories) that must be answered within thirty days, unless an extension of time is agreed upon or ordered by the court for good cause.[64] Requests for production of documents are just exactly what they sound like: written requests served upon the other party that copies of documents or other evidence be either made available for inspection or copied and delivered to the requesting party.[65]

If your attorney sends you interrogatories or other requests for discovery propounded by the other side, you should immediately look them over carefully and determine who in your organization will need to assist in responding. The rules specify deadlines for responding, so to the extent that you or others will need to gather documents together, check records, etc., you should start doing so right away. It is important to understand that if responses are not filed on time, serious consequences may result, including the possibility of a default judgment by the court. If you believe you will need an extension of time to respond, you should call your attorney immediately so he or she can start working to obtain the extra time.

Depositions are discovery tools permitted under the court rules where parties to the action, as well as non-party witnesses, orally answer questions from opposing counsel. Normally, they take place at an attorney’s office. Typically, each party decides what witnesses it wishes to depose. All attorneys involved in the case are notified of the time and place of depositions (usually set by agreement) and are allowed to question each witness who is deposed. Depositions are helpful in ascertaining the strength and credibility of parties or other witnesses and are widely used for that purpose. Each witness is sworn in just as he or she would be if testifying in court and the questions and answers are simultaneously recorded by a certified court reporter. The entire session is later transcribed by the court reporter and copies are provided to the attorneys. Under some circumstances, the transcript of the deposition may be used at trial in lieu of the witness actually appearing. In some cases (typically with treating physicians, who tend to charge heavily to testify live in court), the deposition will be recorded on videotape in addition to being transcribed by a court reporter, and the videotape will later be shown to the jury at trial.[66]

Written requests for admission are also used during the discovery phase. Parties who believe that certain facts, including the authenticity of documents, are not in dispute may file a request that the other side formally stipulate or agree to their accuracy. The opposing party will have 30 days to respond. If, after that time, the opposing party has not responded, the facts will be deemed to have been admitted, and no evidence will have to be presented on those points at trial.[67]

Sometimes during the discovery phase, facts come to light that indicate that there are no material factual disputes requiring a trial and that the outcome of the litigation is subject only to a legal determination by the judge. In such cases, one of the attorneys may file what is known as a motion for summary judgment, indicating that his or her client is entitled to judgment as a matter of law.[68] Such motions do not often succeed, as judges are reluctant to deny parties their “day in court,” but it is the obligation of the attorneys to be on the lookout for such situations and to promptly move for summary judgment when the situation warrants. For example, if a lawsuit is based upon a claim that one of your employees acted negligently and discovery conclusively determines that the employee was not acting within the scope of his or her employment at the time, the case may be summarily dismissed by the judge on that basis without the necessity of taking it all the way through trial.

Other motions, while not necessarily dispositive of all issues, may nonetheless tilt things in one party’s favor. Motions in limine for example, are requests that the court determine in advance of trial whether to admit certain types of evidence. Where it becomes obvious that a witness, if allowed to testify, would present inadmissible evidence, the appropriate way to safeguard against this happening is to file a motion in limine before trial and obtain a protective ruling from the judge. Sometimes this has the effect of cutting the legs out from under your opponent so that he or she becomes more reasonable in settlement negotiations.

Most lawsuits settle before trial. Insurance companies know this and expect to settle most of the cases that come before them. Usually, they have decided which cases should settle well in advance of trial. The longer a case proceeds, the more money it costs the insurance company. So it is therefore in the company’s best interests to determine as quickly as possible whether it wishes to settle a particular case or to defend it through trial. Once a company has determined to settle, it makes economic sense to do so as quickly as possible. For this reason, in most liability insurance policies the insurance company retains exclusive control over settlement decisions.

Even in cases where the insurer, the insured and the defense attorney all feel there is a strong likelihood of a defendant’s verdict, the insurer may determine that settlement is advisable. If, for example, the plaintiff’s attorney knows that he or she has a probable loser, and shows a willingness to negotiate on that basis, it may make economic sense to settle and avoid the cost – and the risk – of trial. Juries are unpredictable, and every experienced trial attorney knows that there are no cases that are so good that they cannot be lost under the right (or wrong) circumstances.

While it is true that in some cases the insured’s permission is necessary to settle, in reality, such permission is almost always granted. The reason for this is that policies that require the permission of the insured to settle normally also contain a provision known as the “hammer clause.” Under such a provision, if the insurance company has a chance to enter into a settlement and the insured refuses to give permission, the insured will be responsible for all defense costs, including attorney’s fees, from that point on and also will be responsible for any adverse judgment in excess of the amount for which the case could have been settled.[69] I have yet to see a case where an insured defendant has continued to withhold its permission to settle under these circumstances.

In New Hampshire, one of the interim events that will be scheduled by the court at the preliminary structuring conference is some form of alternative dispute resolution.[70] Typically, part way through the discovery schedule, a mediation session will be scheduled, usually at a time when most of the discovery will have been completed so the parties should be aware of the strengths and weaknesses of their respective positions. If the parties do not wish to obtain a private mediator, the court has a number of volunteer mediators available who will meet with the parties and their attorneys in an attempt to resolve the dispute short of going to trial.[71] In a mediation, the parties are under no obligation to enter into a settlement agreement; however, it is often advisable to do so, particularly if discovery has revealed that there would be a substantial risk in bringing the matter before a jury.

Besides mediation, another form of alternative dispute resolution is arbitration. Arbitration is a process where parties agree to take the matter out of the court system and instead have the case decided by an arbitrator.[72] An arbitrator is usually an experienced attorney with no stake in the outcome of the litigation who is chosen by both parties. The parties present an expedited version of the evidence to the arbitrator(s), usually in a more informal setting than a courtroom. The arbitrator(s) then decides the case as if he/she/they were judge and jury. Arbitrations have the advantage of being more streamlined than jury trials and, thus, are less expensive. The parties often structure their agreement to arbitrate by setting upper and lower limits to an award; however, by agreeing to arbitrate at all they give up their right to a trial by jury. Many defendants who have gone through the arbitration process in personal injury litigation feel arbitrators tend to be more generous to plaintiffs than juries faced with similar facts. Plaintiffs’ attorneys, on the other hand, often feel that arbitrators are less likely to award substantial amounts than are juries. In truth, all cases must be approached individually and each must be analyzed on its own merits when examining the potential for resolution by arbitration.

If the case is not dismissed, settled or referred to binding arbitration, it will eventually come to trial. When that happens, the first item on the agenda will be selection of the jury. Potential jurors are chosen periodically in Superior Court from a list of licensed drivers and lists of registered voters.[73] The panel of potential jurors is called the venire. Each potential juror, when assigned to this duty, is required to respond to a questionnaire from the clerk of court, giving his or her age, occupation, marital status, number of children, educational background, and other similar information. Your attorneys will have access to the questionnaires and may discuss the list of potential jurors with you prior to trial.

Before jury selection begins, the judge will give the venire a brief summary of the facts of the case and will ask a series of questions designed to determine whether there are any potential jurors who, because of past or present relationships with any of the parties or the attorneys, or for other reasons, might have difficulty being fair and objective. Until recently, the judge was the only one who would ask such questions; however, in state court the lawyers for the parties now are able to participate directly in this process, known as voir dire.[74]

The jurors are then chosen at random. Their names are placed into a hopper and are drawn by the court clerk one at a time until a sufficient number has been selected. When a prospective juror is challenged by either side, another is chosen to take his or her place. This process proceeds until a full jury of twelve has been seated.[75] Alternate jurors are also selected to take the place of any of any jurors who become unable to continue because of illness, personal emergency, and the like.

After the jury has been selected and seated, the trial begins. In some cases, the jury (and sometimes the judge) is taken by bus to the scene of the accident for what is called a “view.” During the view, the lawyers for all parties are also present and ask members of the jury to observe certain things at the location that they feel have a bearing on the case. The lawyers may make no argument or statements of fact at the scene of the view, and the jurors are not allowed to ask any questions of the lawyers. Prior to going on the view, the lawyers are allowed to make brief statements in court to the jury indicating what they would like them to observe during the view.

After returning from the view, the lawyers give opening statements. These are brief speeches that provide the jury with a “preview of coming attractions.” Typically, the opening statement is used to give the “big picture” to the jury. Lawyers are supposed to avoid making arguments and instead restrict their statements to what they expect the evidence to show.

Evidence in trial consists of four things: (1) what the jury sees on the view; (2) the admitted facts (commonly called “stipulations,” which can be presented either by agreement or may be the result of requests for admission); (3) physical evidence consisting of documents, maps, charts, diagrams, photographs, models, pieces of machinery, articles of clothing, etc.; and (4) the testimony of witnesses, which may be live or by deposition, either written or video.

The plaintiff always goes first, followed by each of the defendants in turn. In multiple-party cases, the order of presentation is usually agreed upon by the parties; however, if they cannot agree on the order of presentation, the judge will decide. In many cases, the plaintiff will call not only witnesses supportive of the plaintiff, but also many of the employees of the defendants who are expected to testify as well. This means that at the close of the plaintiff’s case, the trial is often almost over, with very little left to be presented by the defendants.

The presentation of evidence is governed by formal rules of evidence. With some minor differences, these are much the same in both federal and state court. The purpose of the rules of evidence is to insure that the information going to the jury, most of whom are lay people unused to the legal process, is screened to minimize the chance that they may be swayed by something other than facts that have a bearing on the matters in issue.

The evidence that may be presented is controlled by the use of objections. If an attorney asks a question, the answer to which may not be allowed by the rules, the opponent or opposing attorney will typically rise to his or her feet and object, giving a short descriptive phrase, e.g., “hearsay” or “irrelevant.” Long-winded explanations are not allowed, as they tend to provide information to the jury that goes beyond the rules of evidence. Sometimes, if the judge requires more information to rule on an objection, the attorneys will ask to approach the bench and discuss the matter privately with the judge. If a lengthy discussion is necessary, the judge may even excuse the jury from the courtroom while the discussion takes place.

Examples of evidence whose introduction would be improper include some forms of character evidence or “prior bad acts” of the witness,[76] testimony concerning collateral sources of funds (e.g., the fact that the plaintiff’s medical bills were covered by health insurance),[77] evidence that the defendant corrected a dangerous situation after an accident happened,[78] and the catch all: any matter the relevance of which would be outweighed by the prejudicial effect that it could have on the jury.[79]

Witnesses are called to testify by the attorney for the party whose case is being presented. When that attorney questions the witness, it is called “direct examination,” and is normally limited to questions that are not leading; i.e., that do not suggest the answer. An example of a leading question would be, “[i]sn’t it true that you observed my client stopping for the red light?” A non-leading (proper) question would be: “[t]ell us what you observed when you approached the intersection.” There is an exception to the “no leading questions on direct examination” rule and that is when a so-called “hostile” witness is called by the attorney. A hostile witness is one whose background or position may cause him or her to be opposed to the attorney’s client. If one of your employees, for example, is called to the witness stand by the plaintiff’s attorney, he or she will almost always be deemed to be “hostile” and the plaintiff’s attorney will be allowed to ask leading questions.

At the completion of the direct examination, the defense attorney (or attorneys) will be given the chance to ask questions on cross-examination. A cross-examiner will normally be allowed to ask leading questions.

The attorney presenting the case (always the plaintiff first) may call any witness he or she desires. Sometimes the plaintiff’s attorney may call the opposing party or the opposing party’s representative as the first witness at trial. This is often done to catch the witness off guard, hoping that he or she is not yet tuned in to the case.

Normally, witnesses who are not so-called “experts” must testify only to facts that they observed, and may not give their opinions, except when the opinions are, in the view of the judge, both rationally based on the witnesses’ perception and helpful to a clear understanding of the testimony or the determination of a fact in issue.[80] Expert witnesses (i.e., those who are qualified by education, training, or experience) may give opinions based upon facts testified to by others or learned elsewhere.[81] An example might be a treating physician who would be allowed to give an opinion concerning the causal relationship of certain injuries to an accident, based upon facts testified to by others as to what happened at the scene of the accident.

One issue that should be kept in mind by all witnesses testifying on behalf of your company is that the presence or absence of liability insurance is almost always completely irrelevant to the case. It is important that all witnesses are briefed on this in advance of trial, because if someone were to inadvertently blurt it out while on the stand, it could lead the jury to conclude that awarding money to the plaintiff would not really hurt your company.

After all of the evidence has been presented, the attorneys for the parties will give closing arguments. Unlike opening statements, attorneys may use what they consider to be persuasive arguments concerning what the jury ought to make of the testimony that they have just heard. The order of closing arguments is reversed from the order of presentation used throughout the trial, and the plaintiff’s attorney always gives the last closing argument.

At the completion of closing arguments, the judge will instruct the jury on the law that they are to apply to the case. The jury is told that they are the sole judges of the facts, but that they must apply to those facts the law that the judge gives to them. The judge will explain that the plaintiff has the burden of proof on most issues. He or she will define what is meant by “negligence,” and that if the defense of comparative fault, for example, is raised, the defendant has the burden of proof on that issue. The jury will be told that if they decide the defendant is responsible for the plaintiff’s injuries, they are to award full, fair, and adequate compensation for those injuries, but the purpose of the civil process is not to punish defendants or to make examples of them for others.