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What is discovery, and what are interrogatories?

7 August 2011
 

The legal process can be confusing for many. Today I begin a series to examine the legal process known as “discovery.” This is the period of time after which a lawsuit has been filed that adversarial parties to that lawsuit (or in limited aspects, in a criminal case  – more on that later) exchange information (ie “discover”) via a specific, codified procedure in furtherance of the case. The purpose of this is threefold:

  1. It is desirable by both the courts and the parties involved that the case can be resolved without the necessity of an expensive and possibly lengthy trial (in reality, statistics tell us that relatively few cases ever go to trail, despite what TV legal dramas would have us believe);
  2. To determine  which side has the stronger case based on the evidence; and
  3. Finally, to commit witnesses to their testimony via such discovery devices as interrogatories and depositions. Should the case ever go to trial, these statements become invaluable as a way to (possibly) impeach a witness, or raise concerns about their credibility should they change their story down the road.

Come with me while we explore this process.

 (For helpful background information on court structures, please see “A primer on all the different types of courts.”)

As is my custom, I use Harris County (Houston, Texas) by way of an example because it is the jurisdiction with which I am most familiar, but your jurisdiction will likely be very similar as most states model their own civil procedure rules after the Federal Rules of Civil Procedure. All you need to do is Google your state an/or county for the same type of information and rules I’ll be writing about here. 


Harris County Civil Court-
house at 201 Caroline in
downtown Houston

The practice of law is divided into two factions: substantive and procedural. The former is the “meat” of the case. For example, it’s the issue at the core of a corporate lawsuit, say, the contractual issues that are being squabbled over in a breach of contract case; or in a criminal case, it’s the reason why Johnny was arrested – what specific law he broke (he burglarized a house, he drove drunk, he murdered somebody, etc.). The latter are the “rules of the game,” if you will. It’s the rules that run the legal process to ensure fair play and equal justice. It’s the rules whereby party A may or may not present certain evidence in court, or whereby party B has to respond to an allegation in a lawsuit within 20 days. It’s the rules that say, for example, that “fruit from the poisonous tree” may not be admitted into in a criminal case.

Additionally, there are often court-specific rules, or “local rules,” such as might be found in the family law courts, juvenile courts, or a particular state district court. You might also find that specific judges have their own procedural rules. It’s wise to Google for the judge’s or court’s name before making an appearance to familiarize yourself with any procedural requirements or even idiosyncrasies of that particular judge or court.  

Harris County
Criminal Courthouse

For example, let’s say you have a criminal charge pending in Harris County. You can locate local rules that govern preliminary hearings, discovery, and bond, etc., specifically in Harris County. By examining these local rules for the criminal district courts, you see that “The preliminary initial appearance shall be held in each of the District Courts sitting as a magistrate at 9:00 a.m. Monday through Friday.” Thus you know your initial appearance will occur Monday through Friday at 9 a.m.

Conversely, in civil law, let’s say you have a case pending in Judge Michael Gomez’s court, the 129th Civil District (state court as juxtaposed to federal court), you can look up Judge Gomez’s name or the “129th District Court” for further procedural “local” rules, such as “Electronic Document Filing Rules.”  For example, some state district courts (and ALL federal courts) have mandated electronic filing requirements.

Harris County Family Law Center, 1115 Congress, downtown Houston

But I digress, back to discovery. Generally speaking, in a criminal case, the state is required to disclose evidence, in particular any evidence that tends to be exculpatory, but the reverse is not necessarily true. The defense is required, however, to turn over information to the state when, for example, it is preparing an insanity defense, in which case the defense experts are required to be disclosed to the state. Keep in mind the focus of this article, however, is on civil discovery, as that is where my experience lies.  


Map of Harris County Court complex: No. 1 – Jury
Assembly Room; No. 6 – Family Law Center; No. 7 –
Criminal Justice Center; No. 10 – Harris County Jail;
No. 12 – Civil Courthouse

There are two types of discovery: informal and formal. Informal is just what it sounds like – the informal exchange of information between two parties without court involvement. Or it could be your own informal Internet search to locate information on the opposing side. This usually takes place at the early stages of discovery. This includes things like people searches, business records searches, or any other type of publicly available information. You can find an awesome web-site with tons of informal discovery information and links at Craig Ball’s “Sampler of Informal Discovery Links.”  Craig Ball is a well-known board-certified attorney and certified computer forensic examiner based in Austin, Texas. You can visit his web-page here.

Formal discovery, on the other hand, pertains to discovery that follows the procedural rules in all its formalities. That being said, the courts in Texas still don’t typically become involved in this procedure unless there is a problem, though the discovery requests are “propounded” on opposing sides and take the format of a formal court pleading. Your attorney may, however, file what’s known as a “certificate of written discovery,” alerting the court to the mutual flow of discoverable information exchanges, though this is not usually required of Harris County courts, and is sometimes not even desired. Courts don’t typically become involved in the discovery process unless there is some type of issue (motion) that needs to be ruled on. The courts largely prefer the attorneys work the process out amongst themselves in a professional manner and in accordance with the rules, though this is not always possible for various reasons.

There are five basic formal discovery devices: interrogatories; requests for disclosure; requests for admissions; requests for production; and depositions. I’ll cover each in brief during the next few blog entries, but will begin with the most common discovery device today: interrogatories.

Typically, these formal written discovery requests are propounded on your attorney, or yourself if you are pro se – usually by fax or email first, then followed by a hard copy sent by regular mail. If a record is needed proving the requests (and later, the answers) were sent, then attorneys will send them certified mail, return-receipt requested.

Interrogatories are questions asked of the opposing party, usually via the attorney’s office representing a party to a lawsuit. In Texas, as in most states, they must be answered under oath, under penalty of perjury. For this reason, they are notarized when they are completed. The number and types of questions allowable are specified in the Texas Rules of Civil Procedure (see link below).

Generally speaking, interrogatories usually seek information relevant to the case at hand, and can ask such things as educational and work background; basis and facts related to the case; and information on any witnesses that may be called to testify, amongst other things.

The answering party has thirty days in which to respond (unless both sides agree to a postponement, in writing, which is known as a “Rule 11 Agreement,” and must be filed with the court to be enforceable), or raise an objection. If a party does not respond, nor raise an objection (say, on the basis that the question asked is protected under the sacrosanct attorney-client privilege), then the propounding party may file a Motion to Compel, officially asking the Court (and this Motion is indeed formally filed with the Court) to compel the offending party to respond, or otherwise rule on an objection. The offending party may be sanctioned, up to and including even having the case dismissed, though this harsh of a sanction is very rare.

The number and types of questions allowable are limited by the rules of civil procedure, as are the responses and time to respond. Generally speaking, this a rather routine, orderly process, and most attorneys can work out delays amicably. Of course, owing to our adversarial system, this is not always possible.

If you find yourself in the position of experiencing discovery first-hand, I recommend reading the rules (link below) — that will assist you in gaining a full understanding of why things are the way they are. Knowledge is power.

Next up: Discovery II: What are requests for disclosure?  

For more info:
 
You can find particular judges’ and courts’ web-sites in Harris County here.
Or just Google for your state, county, or particular judge’s website. You might be surprised how much information you can find there. You may also call the clerks to ask questions; just keep in mind court clerks are very busy, so it would behoove you to be on your best manners when making inquiries.

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Note: I am not an attorney. If you need legal advice, you should consult an attorney licensed to practice law in your state.

Please go on to Discovery II: What are requests for disclosure?

Sami K. Hartsfield, ACP is a freelance writer, insurance defense paralegal, and NALA Advanced Certified Paralegal living in downtown Houston. She has worked as a law firm Webmaster, law firm social media marketer, and ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. A glutton for acquiring new knowldedge–in addition to her national advanced paralegal certification–she has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com

Sami Hartsfield

  

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Copyright 2011 Sami K. Hartsfield – All Rights Reserved
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2 Comments
  1. I found your site on technorati and read a few of your other posts. Keep up the good work. I just added your RSS feed to my Google News Reader. Looking forward to reading more from you down the road!

  2. Helpful information. Fortunate me I found your web site accidentally, and I am surprised why this accident did not happened earlier! I bookmarked it.

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