Phase 6:  Discovery of Evidence.  Expert witness.

 

The next step after launching a lawsuit is for both parties to make certain motions. These are relatively technical motions and do not affect the overall process. The step that follows is for a series of discovery of evidence activities to commence.

 

Discovery of evidence was a major innovation in American civil litigation in the 1960's.  It does not exist in the other Common Law countries such as Britain and Australia. The theoretical foundation of the discovery of evidence was that if the parties in a litigation exchanged their bottom line evidence before a trial, they would have understood the relative strengths and weaknesses of each other's position. Consequently the parties would engage in realistic settlement negotiation and avoid unnecessary trial.  Even if the settlement is unsuccessful, the mutual discovery of evidence will increase the efficiency of trial and eliminate meaningless guessing and suspicion and sudden appearance of tricks. 

 

The merit of the discovery and exchange of evidence before trial is still an open issue. The critics point out that this procedure often leads to high expenditures and allows too many opportunities for abuse and invades personal privacy, or forces the opposition to pay unbearable expenses and therefore compelled to surrender.

 

A famous example of abusing this procedure to invade personal privacy was the previously mentioned case where Jones accused President Clinton of sexual harassment. Taking advantage of the legal procedure, Jones obtained the testimony of Clinton. 

 

Taking deposition is one of the discovery of evidence methods.  It consists of requiring a witness who has been summoned to appear in a designated private office (not in court room but usually in a lawyer's office) and answer questions posed by opposing counsel (the attorney for the witness is also present) under oath.  The answers are taken down by a court reporter and put together in a booklet or binder. When the case is in trial, the testimony recorded in the booklet can be presented as evidence and has the same legal effect as if the witness is testifying in court in person.

 

As in the well known story where a warrior Xiang Zhuang is putting on a sword dance to masquerade his clear intent to assassinate the enemy Pei Gong,  Jones' accusation of Clinton was merely a masquerade of her actual backer, the extreme right wing of the Republican Party, to destroy Clinton. Unexpectedly, the extreme right wing scored an enormous reward in the interrogation of Clinton!

 

The attorney for Jones asked Clinton, "Have you ever had sexual relation in the White House with a woman other than your wife?" Clinton replied, "No". Later this reply was proven to be false. As to how Clinton's affair with Monica Lewinsky became exposed, how Monica's blue dress was discovered, how the Special counsel of the Republican Party filed criminal charges against Clinton for perjury, how the Republican party then used this excuse to impeach Clinton is enough material to write ten books. 

 

Thus we see that under the discovery of evidence legal procedure, the scope of materials that can be discovered (or ask the opposite side to hand over or provide) is very broad and can be easily abused. It can also lead easily to intense argument by both sides. Particularly in business litigation, the phase of discovery of evidence often consumes more resources and is more decisive than the final trial.  After the discovery of evidence is completed, that is usually the best time to put all the cards on the table and negotiate a settlement. The existence of a discovery of evidence procedure in America means that by the time there is really a trial in the court, attorneys for the two sides (or multiple sides) (if they have prepared well) have mastered the details of the case and can present the direct testimony or cross examination of witnesses in an orderly fashion and make sharp arguments.  

 

Besides the taking of deposition, the other tools of discovery of evidence include interrogatories, request for admissions, request for production of documents, and so on. These are rather technical operations handled by the lawyers and need not be explained in detail to the readers.

 

In our particular traffic accident case, Mr. Zhang paid special attention to two issues. The first is the demand by the opposite side to have the mother of Mr. Wang examined by the doctor from the other side. The mother was not too willing, but Mr. Zhang reminded her that, before the decision to litigate was made, she had agreed to cooperate, and the demand by the opposition could not be refused based on the right to privacy.  Mr. Zhang also advised the mother what to pay attention to when she is examined by the doctor of the opposite party.

 

In view of the degree and permanent character of the mother's injury, Mr. Zhang retained an orthopedic surgeon as his expert witness. The opposing counsel naturally employed an expert witness favorable to his side.  According to the discovery procedure, the two sides had exchanged the information about their experts and the testimony they were prepared to give.

 

The above is an very simplified introduction of the discovery of evidence before trial. Still the reader should have an idea that the work during this phases is very annoying and consumes energy, time and resources.  There is a deadline for each side to respond to the other's demand for evidence. Delay past the deadline will bring about consequences. The reader should appreciate by now why before the filing of lawsuit Mr. Zhang has asked his clients to be psychologically prepared.  Without the cooperation of the client, even the best lawyer is put in a reactive position.

 

Phase 7:  A Court or Jury Trial?

 

Time moves on, and soon a decision whether to resolve the case by a trial has to be made. Mr. James, representing Tony, and Mr. Zhang have discussed settlement or arbitration, but differences remained unbridgeable.  At least they did agree to waive a jury trial.

 

Giving up a jury trial was for Mr. Zhang a tactical as well as conservative decision.  If the choice is a jury trial, before an advantage is obvious, the negatives are clear. The jury may not award a more generous damages to Mr. Wang, but consuming three times the time and resources are for certain. Was the risk worth taking?  If it happens that the jury cannot reach a nine to three verdict and there is a mistrial requiring a re-trial, the consequences to Mr. Zhang are the same as losing the case as he will not expend energy to fight another war without assurance of success.  

 

Mr. Wang and other clients agreed with the analysis of Mr. Zhang. A decision was made accordingly.

Phase 8:  Prelude to a Court Trial

 

A court trial is simpler compared to a jury trial, but it does not mean one can take it lightly and not prepare.  On the day of the trial, Mr. Wang's side and Tony's side all appeared in the courtroom of the Presiding Judge (equivalent to the chief judge in the Chinese courts) of the San Francisco Superior Court awaiting a courtroom assignment. The courtroom was full of groups of people;  each group consisted of the clients and their attorneys waiting for court assignment, or are the lawyers' assistants pushing carts of boxes of documents.  When it was the turn for Mr. Zhang, the Presiding Judge estimated that it might be another six days before a court was available, so he said, "I do not have an empty courtroom; you can go back and wait". 

 

Fortunately, only two days later Mr. Zhang received a call from the secretary of the Presiding Judge, "Trial will begin tomorrow;  your report to Judge Robertson's court at 8 a.m.".

 

The next day, the attorneys of both sides arrived in court. The first thing was to present to Judge Robertson their trial briefs. The judge read the briefs and called the attorneys from both sides into his private chamber. He said, "I have read the briefs. Before trial begins, do you think there is a chance for settlement?" The attorneys from both sides shook their heads. So the judge said, Okay.  Do you have any trial stipulations before trial begins?

 

Trial stipulations are a good way of simplifying a trial. In the example of Mr. Wang, after conferring, Mr. Zhang and Mr. James told Judge Robertson that they have agreed to the following stipulation of facts: The accident occurred on November 24, 2004; the location was San Jose Road, San Francisco.  Mr. Wang was driver of a Toyota vehicle...

 

It was because there were trial stipulations, at trial the parties would not need to spend time on undisputed facts. If the facts of the case are very complicated, the judge presiding the trial would pressure the attorneys urging them to reach a trial stipulation, particularly if it were a jury trial, so that there would be no waste of time at trial.

 

With these preliminaries completed, the judge then took the bench and announced the beginning of trial.

 

Phase 9:  Witness Testifies - Socratic Style of Questioning

 

Once the judge took the bench, all the words spoken and actions were recorded by the court reporter.

 

The judge said to the attorneys from both sides, "I have read your trial briefs.  Do you still want to make opening statements?" That was a hint by the judge that he hoped trial would move expeditiously.  Naturally the attorneys gave up making the opening statements.

 

Representing the plaintiffs, Mr. Zhang called Mr. Wang as his firsts witness. He hoped Mr. Wang could concisely prove that:  first, the person responsible for the accident was Tony; second, the amount Mr. Wang demanded for compensation is reasonable. Mr. Zhang had written out every important questions and had discussed with Mr. Wang about how to respond. Of course, Mr. Zhang reminded himself: talking too much can bring errors; do not ask a question unless you already know its answer.

 

The tactic of Mr. James, representing Tony, was to object continuously when Mr. Wang testified, to interfere with Mr. Wang so that he could not concentrate. If Mr. Wang said something wrong, James would attack him in cross examination.