Whether a civil or criminal proceeding, a trial can last for several months – from the initial hearing to final disposition – or years. When an event takes that long, it will inevitably have stages or phases of the process.
Perhaps one of the most important phases of a trial is what is called the discovery phase, which occurs before a trial commences in a courtroom. The discovery phase essentially helps the two sides of a case set up their “game plan” for the trial – what to attack, when to defend, when to deflect, when to cast doubt. Much of how a trial is prosecuted by both sides is determined largely by the information revealed in discovery.
The discovery phase in a trial is also called the evidentiary phase, or the phase where evidence and factual statements are revealed by both sides. All the cards are placed on the table, so each side knows what the other side has to make its case and there is no surprises in court, which may delay the process and violate a citizen’s right to a “speedy trial.”
This phase can involve a hearing with production of documents, and it can also involve motions to suppress or motions to compel discovery based on sensitivity and relevance of some evidence or statements. Discovery means it is the part of the trial where both sides “discover” the cards in each side’s hand as they play poker at the trial.
Evidence that is presented during discovery can involve documents, expert or professional testimony, depositiosn of witnesses, digital communications (text messages, e-mails, video calls, etc.) that can be deemed relevant or material to the case. This may also include a list of witnesses that each side would expect to call to testify.
One of the most common aspects of discovery is the deposition, which is an interview outside of court of a witness in the case. Depositions are generally cross-examinations under oath, though most states do allow depositions by either party’s lawyer to either party’s witnesses. Most of the time, however, both parties’ attorneys are present at a deposition, even if only one side demands or requests the deposition.
Depositions have the force of a trial setting, where the witness is sworn under oath to tell the truth and answer all questions honestly, though the attorney representing the witness may object to some questions on the record, as depositions are usually videotaped or transcribed for use at trial.
There is formal and informal discovery with a case. Formal discovery usually involves hearings and will involve requests for production (of evidence), depositions, or requests of admission (which are basic facts of the case that both sides should concede or stipulate before trial).
Informal discovery can be handled by a witness or an attorney outside of a court hearing. This includes gathering photographs of damage or stolen property, insurance claim forms, witness statements, interviewing witnesses, getting third-party verficiation of facts to support your case, etc.
Once the discovery phase is complete (which may take weeks or months, depending on the complexity of the case and the volume of disvoerable material), the trial can move onto either a settlement process (when, after discovery, both sides can concede strength or weakness of a case and decide to avoid the trial) or can move into the jury-selection phase. In some cases, the discovery phase can be the longest phase of a trial.