American civil procedure allows lawyers in civil suits to get information from the opposing party and from witnesses. The techniques for this purpose are called pre-trial discovery.
The chief method of discovery is deposing of the parties and witnesses. In this out-of court procedure, the person whose deposition is taken is questoned under oath by lawyers for each side. the device is useful in finding information that is relevant to the case. The parties almost certainly will want depositions taken of each other, because they are treated as admissions, and can be used by their adversaries as evidence at trial.
Another useful device is written interrogatories, which usually may be addressed only to a party to the suit. Since they will require an opponent to supply information that he does not carry readily in his head, they may be even more valuable in finding out what he will try to prove.
Other discovery devices include compulsory physical examinations by doctors chosen by the other party in personal injury cases; orders for the production of documents; and serving of demands by one party on the other to admit facts under oath.
These procedures allow a party to learn not only about maters that may be used as evidence, but also about matters that may lead to discovery of evidence.
The court usually takes no part in discovery procedures. However, if one party feels the other is making improper discovery requests, or is not reasonably responding to discovery requests, he may make a motion to the court and ask that the violating party be ordered to obey the discovery rules.
Discovery serves at least two purposes. First, it takes the surprise element out of litigation and ensures that the results of lawsuits are based on the merits of the controversy rather than on the ability or skill of counsel. Second, discovery encourages settlement by making all evidence available to both sides. At the end of discovery, a pretrial conference between the lawyers and the judge is usually held. At this conference the pleadings, results of discovery, and probable evidence are reviewed in an attempt to settle the suit. The issues may be further narrowed, and the judge may even predict the outcome in order to encourage settlement. Today, a very substantial number or lawsuits that are filed are settled sometime prior to trial. Discovery procedures contribute significantly to these settlements.
Discovery also helps make summary judgment a viable and fair procedure, because it enables a party to find out issues on which the opposing party has no evidence. Thus, if a party finds that an issue that is decisive of the case does not exist, he may make a motion for summary judgment. This motion can be supported by affidavits and depositions gathered during discovery. It asks the court to decide the case in the mover's favor by showing that the opposing party does not have any admissible evidence to support his position on the issue at trial. Summary judgment saves the parties the trouble of going to trial.
A further function of discovery may be the harassment of an opponent. To be sure, this is not accounted a legitimate function of discovery, but betwwen the limits of the clearly acceptable scope of discovery and the clearly abusice there is a range in which the litigant may maneuver to the greater or lesser annoyance and expense of his opponent. And the existence of that range of maneuver is a fact of life under modern procedure.
The discovery phase of litigation can be lengthy and costly, providing an advantage to those litigants who can afford to absorb such costs. Because of this problem, some jurisdictions have limited the number of witness who can be deposed or the number of witness who can be deposed or the number of interrogatory questions that can be put forward.
After discovery is completed, if the case has not been terminated by dismissal, summary judgment, or settlement, it must be set for trial. Typically either party may file a notice of trial, at which time the case will be given a number and placed on a trial calendar. These calendars have become extremely long in many courts, and the case may have to wait a year, three years, or more before it is called for trial, especially if a jury trial has been requested.