Preparing For Court

What is 'discovery'?

Discovery is a formal pre-trial investigation. Prior to the trial, every party has the legal right to talk to witnesses. On the other hand, witnesses don't have any legal obligation to talk to parties. So, discovery is a term for basically legally sanctioned investigation where you can bring a witness in and ask them questions under oath. That's called a deposition. If they're your opposing party, you can send them written questions called interrogatories which they have to answer. If you need to inspect, let's say, the location where something happened, that is part of discovery. You'd make a motion to the judge that you be allowed to inspect, let's say, documents or premises that are under the control of your adversary. All of those processes, those compelled investigation are called discovery.

What is a 'deposition'?

A deposition is testimony taken under oath, just as it would be in trial, but taken prior to trial. It's a way for one side of the case to question either their adversary or witnesses who are aligned with their adversary, or maybe neutral witnesses, to find out what they know and to try and pin them down so that they can't change their story. It's a series of questions and answers which are printed in a booklet which can be used in evidence if the case goes to trial.

What are the rules of civil procedure?

The rules of civil procedure are the kind of skeletal structure of civil courts. They are all the various processes these courts follow that determines what is the best court to sue in? Does a court have jurisdiction over a particular person, maybe they live in another state? When does discovery happen? When does it have to be completed before trial? What motions are available? When are they made? When is the trial going to take place? All of these. It is the backbone of the civil justice system. We call that civil procedure.

What are the elements of a legal claim?

Well most legal claims, whether they're civil claims or criminal charges are made up of elements, and if you are a plaintiff you have to know what those elements are. For example, in a breech of contract, you have to prove that there was an offer; you have to prove that there was an acceptance, you have to prove that there was a breech, and you have to prove that you were damaged. These are the elements and you have to be able to prove each of these elements in a civil case by a preponderance of the evidence in order to succeed. A lot of times people use the terms loosely, but for example, in a criminal contest, lets say somebody comes home to find that their television set has been stolen, and someone broke into the house while they were away and stole their TV. Well they may say, well I was robbed. Well, robbery is a criminal charge but an element of robbery is that whatever was taken by means of force or fear. Well the people weren't home at the time it was taken, so while they may use the term robbery, they really weren't the victims of a robbery because an element, taken by force or fear, does not exist. The elements are all the subsets of the various claims and charges that people have to be aware of before they go to court.