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Before the Trial

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What is discovery?

In some court cases, the parties are required to give each other information and documents about the case before there is a trial. This exchange of documents and information is called “discovery,” and there are rules in every state about how and when discovery happens. Usually the parties have to send written requests, also known as demands, to the other party to get this information.

This exchange of information lets the parties know what evidence the other side will be presenting at trial. Exchanging discovery helps to make the trial run smoother and it often helps the parties reach an agreement or settlement without having to go through a trial. Knowing what kind of documents or information you can ask for, how to use depositions, and how to respond to discovery requests that you receive, can be an important part of winning your case.

For example, let’s say you are getting divorced and there is an issue about whether the marital home is the separate property of your spouse or whether it is marital property. Through discovery, you can make a document request to show that you made financial contributions to the home or that mortgage payments came from a joint account. To get more specifics about the allegations in a complaint or counterclaim, you could demand a bill of particulars. If you are wondering who the other side is calling as witnesses, or if the other side plans to call any experts to testify, you can make a request for a witness list to get that information. You also could send interrogatories to your spouse with detailed questions about the property, and you could question your spouse about the property during a deposition to establish that you helped with the upkeep of the property. You could then present all of this information to the judge at trial to prove that you were involved with the property and, therefore, the property should be considered marital property and subject to equitable distribution. This is just one example, but as you can see, discovery is an important information-gathering tool.