| DISCOVERY
Q. Can a party force his or her opponent to disclose information
and witnesses even before the trial begins?
A. Yes. This process, called "discovery," is a vital
step in any litigation and a reminder that the
goal of our legal system is to do justice rather than to reward the clever
attorney or secretive
litigant. "Surprise witnesses" and "secret evidence"
are the province of TV and Hollywood, not the real courtroom. Among the
discovery tools available to litigants are:
• Depositions. The attorneys for each side in a lawsuit may compel
potential witnesses to answer written or oral questions under oath.
• Interrogatories. Each party can submit a list of written questions
to the other party, which again must be answered under oath.
• Motion to produce documents. Each party can compel the other to
produce relevant documents in the other party's possession, custody, or
control for the purpose of inspecting, copying or photographing them.
• Request to admit. Each party can ask the other to acknowledge
that an allegation is true and
thus spare both parties the trouble, expense and delay of having to prove
it at trial.
Q. What is summary judgment?
A. Even after discovery has begun, a full-blown trial still may
be forestalled by a successful
motion for "summary judgment." Summary judgment may be appropriate
if the facts in the case
are clear and the only question is how the law should be applied to those
facts. In such cases, there is no need for a jury or judge to hear witnesses
or view evidence regarding what happened. All that is left for the court
to do is to apply the law to the known facts, and this it can do without
a trial.
In considering whether to grant a party's motion for summary judgment,
the trial court will
review the parties' affidavits (written statements made under oath) and
discovery materials to
determine whether, viewed in the light most favorable to the opponent
to the motion, there is no
genuine dispute regarding an important fact.
If the court is uncertain whether the case contains a genuine issue of
material fact, it will
deny the summary judgment motion and the case will proceed to trial. If,
on the other hand, the
court is convinced that there is no such factual dispute, it will consider
the parties' written
arguments on the legal issues and then grant the motion for summary judgment,
disposing of the
case.
Q. What if my opponent and I agree on some but not all of the
facts in my case?
A. Parties can "stipulate" to the existence of certain
facts and thereby forego the need to introduce evidence at trial to prove
those facts.
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