The Discovery Process & Avoiding Ambush
Brian O Sutter
Personal Injury
One of the things that some people may be familiar with from courtroom dramas and other forms of entertainment is the “twist” that can occur in court. This usually comes in the form of a surprise witness, or a sudden revelation of evidence that leaves the opposing side in a court case completely unprepared and unable to pursue their case.In television and movies, we usually enjoy this type of courtroom intrigue because it’s normally the cleverness of the main character—or his or her attorney—that allows this sudden surprise to win the day. For entertainment purposes, these surprises and twists have a lot of value and make for much better, more fun story-telling.
In the real world of actual court process, this type of surprise rarely occurs, and for good reason. In a practical court system that is trying not to stack the odds in favor of one side or another, this kind of surprise twist is actually strongly discouraged in Florida.
The Ambush Trial
The technical term for a surprise twist in court is known as a “trial by ambush,” which clearly does not sound as pleasant or fun as a plot/surprise twist. A trial by ambush is what happens when one side or another in a trial is caught by surprise by some unexpected or unknown factor. Usually, it is a piece of evidence or a witness that has been concealed from the opposing side in a court case, so as to ensure that there is little to no chance of coming up with an adequate defense.
Trial by ambush was actually a much more common practice in American courts in the 20th century. By about the 1980s, many courts—including those in Florida—decided that not giving both sides the chance to work from the same information to mount a decent argument or defense was actually unfairly stacking the odds in favor of whomever was doing the concealing.
Since then, it has been traditionally encouraged that both prosecution and defense share information with each other. This does not mean that they reveal their arguments for or against each other, but it does mean that both sides will know what evidence and what witnesses are being brought into the court.
The Discovery Phase
This is now a standard part of the pre-trial activity known as the “discovery process.” During this time, if, for example, you sought the service of a personal injury lawyer in a car accident case, your lawyer would be doing a lot of investigative work. The discovery process is the portion of a case that often takes the longest time to execute, because it is here that your lawyer will be interviewing witnesses, talking to experts, gathering evidence and generally building your case.
However, while your lawyer is doing this, the defense lawyer is doing the same thing. It is during this discovery process that both your lawyer and the defense lawyer will be sharing information. They may know which medical expert you are planning on bringing to the stand, but you also know which witnesses they will be planning to try to play against you.
In other words, neither side has the advantage of an unpleasant surprise waiting in the wings to reveal to the court. You and your lawyer will always know exactly what you are up against, and can formulate your arguments accordingly, and the defense can do the same. While some argue this may rob lawyers of a possible “tactical advantage” in court, it also means you will never suddenly find yourself in a trial with an argument against which you and your lawyer have no defense, because you never knew it was coming.