In the end, the paperwork really does matter

Ken Garten
Legal perspectives
Ken Garten

There’s an old adage about lawyers in trial: “Don’t ask a question of a witness that you don’t already know the answer to.”

This, of course, violates the basic premise to every courtroom drama on TV or in the movies, where the courtroom action plays out with twists and turns and surprises that keep the plot line interesting.

But in reality, during the year or more that the average case is pending before a trial, the parties engage in pre-trial discovery procedures in the form of interrogatories, written questions directed to a party that are required to be answered in writing under oath; requests for production, whereby the parties may request for inspection and copying documents and other tangible evidence or material from the other parties in the case; and depositions, whereby parties and witnesses are questioned under oath before a court reporter about what they claim and what they know and have observed, and a verbatim transcript is prepared of the witness’ deposition testimony.

Through these processes, the cards are placed on the table for all to see.

Part of the theory of pretrial discovery is to facilitate open evaluation, and to avoid surprises and trial by ambush. This is also a big part of the reason that about 95 percent of all cases are settled without a trial. The facts are uncovered, and everyone gets a chance to reveal and determine the strengths and weaknesses of each side’s case.

And, when you have a chance to obtain and review all the documents, get answers to basic questions about the other side’s claims in a case, and question the witnesses and other parties on the record, if a witness’ testimony in court differs from their prior statements in discovery, then they can be “impeached," whereby they are confronted with their prior inconsistent statements, oftentimes in dramatic and impactful fashion that not only calls into question their testimony but also their overall credibility.

That can be fun.

But the process of assimilating and indexing all of the facts, exhibits, and evidence for a contested trial that may last for several days can be daunting.

I have often told clients a contested litigation file starts with a single sheet of paper, a client intake sheet, and from there, over the weeks and months to come, the file grows in bulk, oftentimes occupying multiple bankers boxes of documents and materials that are stacked up and wheeled into the courtroom with a portable dolly for trial months later.

And so when you see a lawyer at the courthouse on a Monday morning wearing their spiffiest trial suit and wheeling a dolly stacked with boxes down the hallway, you know that he or she is scheduled for trial that week, and most certainly worked a number of long hard hours over the weekend getting ready.

Like so many things, trying a case in court can be a blast, but the arduous process of preparation it takes to get there is invariably grueling.

And trial lawyers spend a lot more of their time wading through the paperwork of preparation than they do standing in the courtroom doing their thing.

But that’s were cases are often won or lost, in the process of pretrial discovery and preparation.

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.