Following the pleading stage is the discovery stage. This is the more time consuming phase of a civil trial. This stage follows procedural rules according to the court where the litigation started: state or federal. They are statutory in nature and codified in each state’s statutory compilation.
The federal rules of civil procedure are also located within the statutory codified compilation. Their basic purpose is to ensure that the parties to civil litigation “could obtain disclosure of all relevant information in the possession of any person before trial, unless the information was privileged.”
The amount of discovery in civil cases depends on the parties’ financial prowess. Discovery means labor hours for attorneys. During this stage, lawyers for both parties will try to discover facts that will substantiate their clients’ allegations-of injury, for the plaintiff, and of non-feasance for the defendant. An easy scenario is the one in which the defendant answers with strong counterclaims and moves to have the court dismiss the plaintiff’s case for failure to state a cause of action. Such a strong reaction may intimidate the plaintiff and induce it to tell its attorney that it does not want to prosecute the case any longer. That often ends the case with an out-of-court settlement.
But, usually, discovery is a process that takes months because each party’s attorneys try to procure proof for their clients’ allegations. In perhaps clearer words, discovery means gathering the information needed to build a winning case in court. It involves discovery requests by asking the other party to provide as much information as possible through a large array of documents. All the motions and documents produced during litigation are recorded in the docket sheet mentioned earlier.
Those documents have specific names and their use during the pretrial stage is strictly regulated by procedural rules. For example, the Rules of Federal Procedure—Federal Rule of Civil Procedure 26 (published in Title 18 of the United States Code)—require that all disclosures, requests for discovery, and responses to discovery requests be signed by the party’s attorney. Among the most popular discovery means are “interrogatories,” and “depositions.” Interrogatories are questions addressed to the other party that need to be answered under oath. Depositions involve recording testimony of a party or a witness. Depositions are usually used to record the parties’ initial position about the facts in dispute or to record the testimony of a witness that may not be available at the trial stage. If the parties persist, at the end of the discovery process, the lawsuit reaches the trial level.