Get involved in a lawsuit or administrative action of any sort, and one of the first things you will be educated about is “discovery”. This one, three syllable word describes what is usually the second-most expensive part of lawsuits, second only to the trial itself. And sometimes discovery can be even more expensive than trial. Why do lawyers like discovery so much? Well, in many cases we hold this secret hope that we will find the silver bullet. Here are a few true stories submitted by lawyers and reported in the American Bar Journal that illustrate just how valuable discovery can be:
Story No. 1. The Delaying Insurance Co. Wife sued insurance company for refusing to pay on deceased Husband’s life insurance policies, claiming Husband committed suicide. Wife’s lawyer asked for the Company’s entire investigative file. Whoever copied the file first made copies, then marked out selected sentences with a black marker, and mailed those blacked out docs. As you may know, when you do it this way, the reader can still read what’s been marked out. And what was marked out in this case was a sentence from the in-house counsel to the claims manager, suggesting that the Company delay payment based on a claim of suicide, “even though there’s not really evidence of it.” When brought to the Company’s attention, it paid up on the policy the very next week. Moral to the story: when blacking out text, make a copy of the document, black out the text, copy the document with blacked out text, and send the copy.
Story No. 2. Determined Traffic Cop. Defendant was driving at night, and got pulled over for a defective headlight. Defense Lawyer got the radio broadcast tape of the arrest. Officer A and Officer B, in separate cars but both with a view of the Defendant’s car, had this most helpful exchange just prior to the arrest:
Officer A: “I’m going to stop him, the headlight’s out.”
Officer B: “No, it isn’t.”
Oops. Not exactly video of Rodney King, but much more effective. And less violent.
Story No. 3. Star Witness. Law student intern with the San Diego Public Defender’s Office called a law enforcement agency outside San Diego to get some information on the prosecution’s “star witness.” The detective answered the phone, asked him to hold, placed the phone down on the desk without hitting the “hold” or even “mute” button, and yelled across the room to another detective to ask if Star Witness’s name was familiar. In yet another “priceless” Mastercard moment, the reply was “Oh yeah, that’s the guy who skipped town because of that murder warrant.” And Star Witness quickly became Apprehended Witness, never taking the stand for the prosecution.
Story No. 4. Delete What You Delete. Defendant denied under oath three times that he had represented himself to be a CPA. So Plaintiff’s lawyer showed Mr. Bogus CPA three deleted resumes with cover letters enclosing them, all claiming he WAS a CPA. The electronic versions of these docs were found in the “deleted” files of his computer hard drive. “Delete” does not always mean “deleted.” These days this stuff is tip of the iceberg; imagine an opposing party going through all of your deleted Emails and Internet browser history……
Story No. 5. Jailhouse Rock. Plaintiff claimed extensive injuries and ongoing health problems caused by a car wreck, plus a huge amount of lost wages. He went for it all: brain damage, post-traumatic stress disorder, anxiety, panic attacks, neck injuries, and asthma. Ever known a car wreck to cause asthma? Me neither. Suspicious Defense Lawyer ran a search of county, state and federal criminal histories, and found that the Plaintiff had been doing the Jailhouse Rock in Club Fed for the last 8 years. So much for lost wages. Then, his prison medical records contained all of his complaints–except, of course, brain damage, although the records did document a long history of drug abuse. So much for any chance of recovery.
So there you have it, five fantastic stories about the value of discovery. So the next time your lawyer mentions discovery, help them figure out what to ask for, and hope for a miraculous silver bullet.