Why Do Trials No Longer Have Surprises?
Brian O Sutter
Personal Injury
There’s one thing that still plays out a lot in law and courtroom dramas both on television and in cinema. It’s the “surprise turn” that can sometimes occur in a trial, where an attorney suddenly produces a “surprise witness,” or “surprise evidence,” that no one was expecting that can suddenly change the outcome of a court case. Despite the obvious dramatic appeal of this kind of twist or turn in a story, it does not actually happen in modern trials. At least, not anymore! Today, both sides of a court case know exactly what type of material is going to be submitted thanks to a procedure known as the “discovery process.” But why do we have this now, instead of the much more dramatic surprises?
Everyone Is Treated Fairly
“Trial by ambush” is a term that describes the process by which some attorneys would hide information from the opposition. That way, when the trial date arrived, a key witness or piece of evidence would be submitted for which the other side of the case would have no knowledge, preparation or defense against. By the 1980s, however, this was no longer seen as a fair practice and so the discovery phase or process was created, and is still in practice today.
With the discovery process, if you were to undertake a case where you were seeking proper workers compensation for a workplace injury, for example, then there would be actual sharing of information between your workers comp lawyer and the other attorney. This doesn’t mean that they would be cooperating, but it does mean that there is honesty and fair play between the two legal professionals.
Free To Make Requests
During the discovery process both your lawyer and the other lawyer will be sharing information freely. So if your lawyer makes a request for certain information, it will go on record whether the other lawyer agreed or denied the request, and if there was agreement, it will be noted what was received. In the same way, when your lawyer is gathering evidence, or investigating certain lines of questioning, the other lawyer will be made aware of this.
In one sense, this can benefit both parties, and sometimes even hasten the resolution of a case. For example, if your lawyer knows that you have a very strong case, and the other side is aware that your lawyer is gathering mounting evidence that will lead to an incredibly strong presentation to a jury in court, everyone may well agree that there’s almost no point in letting this case continue. It’s better to simply accept what you are asking for now, and settle out of court.
In some cases, the discovery process may even be the reason that a case will settle out of court to begin with. Attorneys have the right investigate all possible avenues of evidence and questioning that may be relevant to winning your case. If there are “skeletons in the closet” that may be uncovered by the discovery process, a case may settle out of court simply to prevent discovery from uncovering this.