What Every New Attorney Needs to Know About Pretrial Practice The Life of a Civil Lawsuit From Pleadings to Discovery PART I: PLEADINGS Professor Steven P. Byrne ‘77 PART II: DISCOVERY & DISCOVERY MOTIONS Professor Don G. Forgey ‘77

Civil Discovery in State Court Professor Donald G. Forgey ‘77 Lewis Brisbois Bisgaard & Smith LLP Los Angeles

Civil Discovery in California: Governed by the “Discovery Statutes”- C.C.P. Sections Process for the formal exchange of information between the parties to a lawsuit. Purpose: To obtain the information you need to accurately evaluate your case.

Includes: – Depositions – Written Interrogatories – Production of Documents/Things – Physical & Mental Examinations – Requests for Admissions – Exchange of Expert Witness Information

The Discovery Statutes do NOT govern informal investigation techniques such as: – Obtaining written or recorded statements from a claimant and/or witnesses. – Conducting a sub rosa surveillance on a claimant. – Civil and/or criminal index checks on a claimant through the courts. – Obtaining insurance bureau “index reports” on claimants.

Status of the Courts: California courts in crisis due to severe budget cuts. Los Angeles Superior Court restructured. a)Courts closed/ Court staff laid off. b)Judges have increased caseloads. c)Most p.i. cases re-assigned to one of the only 3 departments, downtown. (Depts. 91, 92, or 93.)

d)30 full-time trial courts County-wide. Cases assigned out from Dept. 1, downtown. e)Court reporters– No longer routinely provided by the court. f)Case Management Conferences (CMCs)– Not being scheduled. g)Jury fees– Filed earlier, and non-refundable.

Importance of working with the court a)Avoid unnecessary Law & Motion– Refrain from filing hyper-technical Demurrers, Motions to Compel, etc. b)Do what you can to make your judge’s job easier, not more difficult.

Discovery phase is typically the longest phase of a lawsuit. [Timeline] Paper Intensive See pages 3-4 of handout. (Exhibits- List of discovery docs provided.)

The “Paper-Trail” of Discovery A.Interrogatories (“Interrogs” or “Rogs”) Can be served on any party. Not filled with the court. 30 days to respond (+5 days for mailing.) Responses must be in writing and under oath.

Form Interrogatories – Approved as to form by Judicial Council of California. Special Interrogatories – Limited to 35, unless accompanied by a Declaration for Additional Discovery.

B. Demand for Production of Documents, Tangible Things or Inspection of Land. May be served on any party. Not filed with the court. 30 days to respond (+5 for mailing.) Responses must be under oath. Party may request electronically-stored information.

C.Remedies for Party’s Non-Compliance Meet-and-Confer letter Motion to Compel Monetary sanctions Motion for Terminating Sanctions

D.Depositions Not limited to parties. Can depose anyone (eg., witnesses, family members, treating doctors, employers or co-workers, experts, etc.) For depo of a party– Need only a Notice of Deposition. For depos of others– Need a subpoena, in addition to the depo Notice.

E.Requests for Admissions (“RFAs”) Can be served on any party. Asking party to admit or deny: (a) the truth of any matter, or (b) genuineness of a document. Limit of 35 RFAs, unless accompanied by a Declaration for Additional Discovery. (*Doesn’t apply regarding authenticity of documents.)

30 days to respond (+5 days for mailing.) Responses must be under oath. Effect of Admission: Binding on party making the Admission, but in pending action only. Unreasonable failure to admit may result in that party paying the other side’s costs and reasonable attorney’s fees.

F.Physical and Mental Examinations (Demand for IME) Defendant in a personal injury case can demand medical exam of plaintiff. Exam must be performed by a licensed physician, or licensed clinical psychologist with doctoral degree in psychology plus minimum 5 years postgraduate experience.

Limited to one exam only, and - Exam may not be “painful, protracted, or intrusive”, and - Exam must be at location within 75 miles of plaintiff’s residence. Exam date must be at least 30 days after service of Demand for IME. Plaintiff’s attorney or representative may attend exam, and may record it. Motion for Physical or Mental Exam.

G.Expert Discovery Demand for Exchange of Expert Witness Information. Designation of Expert Witnesses. - Must list “retained” and “non-retained” experts. Supplemental Designation of Experts. Expert depositions.