Playing Offense on Discovery
I just finished Troubled Blood, the latest installment of a series of detective novels written under a pen name by J.K. Rowling.
The main character is a private detective named Cormoran Strike, who solves interesting cases in London. The series is five books long, and I eagerly await the next novel.
A Lesson from a Fictional Detective
I think Strike has a few things to teach lawyers about litigation – particularly discovery.
Strike doesn’t have the power to issue subpoenas, depose witnesses, request documents. Instead, he navigates his cases based on skill, public information, the internet, and voluntary interviews.
Too often, we play defense when it comes to discovery.
In criminal cases, we wait to see what the State or the Federal government sends us.
In civil cases, we are often formalistic in our approach. Discovery becomes a game of withholding and motions to compel.
A Modern Way to Approach Discovery
Our traditional definition of discovery has its place and is often the only way to get to certain information. But we often neglect the information we can learn simply by talking to people, asking for documents, and using a little skill and ingenuity.
- Sitting down with people. You’d be surprised how often people will talk to you – not just friendly witnesses but witnesses whose interests are adverse to your client’s.
An important first step in a case is to generate a list of names. Ask you client to name any witness who might have any information about the case and to provide you with their contact information.
Then take a look at initial law enforcement reports, accident reports, incident reports, and names and contact information. Look at warrant applications, search warrant applications, and indictments. Start a centralized list of names. Note even the names of law enforcement. Then see who will talk to you.
When I was in my third year of law school, I took the State’s witness list, called all the numbers, and made detailed reports of what the witnesses told me. I learned a critical piece of information that not even the state seemed to know. And the lawyers I was working for used this information to win the case. That firm offered me a job, where I came to work out of law school. I stayed there until I started my own firm. A couple of words of warning, be careful either to record interviews or to have an assistant with you so that you don’t end up conflicted out of a case. Also, be careful about interviewing children.
- The Internet. I have learned, over the years, that people often lack a filter regarding what they share on social media. To the extent that you can, you should check in on what clients are posting on Facebook, Twitter, and other social media outlets.
People will often talk about the case on social media or will reveal character issues on social media. There is much to be learned from what people choose to announce publicly.
Again, proceed with caution. Be careful not to violate a bond condition on your client’s behalf and not to do anything false or misleading to gain access to information. I try to stick to what any member of the public can see.
- Open Records. So much information is available by an open records or FOIA request. I’ve obtained 911 calls, radio communication, and CAD reports by open records request.
And, I’ve often gotten access to documents, CCTV recordings, and other information simply by identifying myself and asking. People often want to be helpful or would prefer to simply give you access to things to avoid legal process.
Lastly, Follow the Golden Rule
I’ve done so much over the years simply by asking nicely.
In fact, there have been many cases that we have worked up better than the State or our opponent. It is not uncommon to already have created the same or a better discovery file than the one the State gives us.
And, often when it comes to a motion to compel, the information I already have at hand often persuades my opponent to go ahead and give me what I am entitled to because I already know so much by investigating the case informally.
Informal discovery is valuable on any case. It works for Cormoran Stike, and it can work for us, too.