Show Them Yours
Show Them Yours
Evidence in the possession of our client should be prepared for early disclosure to the other side. This principle is both expressed and implied throughout the rules of civil procedure and evidence. The federal rules of civil procedure require specific initial disclosures to be made without the request of the other party. Oklahoma’s civil discovery rule has a similar requirement. In divorce cases, each party must make financial disclosures to the other without awaiting a request from the other side for the information. To receive the benefit of the “business records” hearsay exception, we are required to disclose the record in advance to the opposing party. However, these disclosure rules are too often overlooked or ignored, despite the many potential benefits of “showing them yours” early on.
Before we ever file a lawsuit, or as soon as we get into one that is already pending, we identify the evidence that will prove our client’s case. Each piece of evidence is evaluated for its value and for its potential issues, including relevance, reliability and hearsay. Evidence that our client possesses or knows about will ultimately be available to the other side. The discovery and evidence codes are set up to avoid surprises. Our discovery code says, “Parties may obtain discovery regarding any matter that is relevant to any party's claim or defense . . .” The Oklahoma Court of Civil Appeals emphasized this concept in State ex rel. Prot. Health Services v. Bfc, 158 P.3d 484, 489, 2007 OK CIV APP 24, ¶ 17:
Civil trials no longer are to be conducted in the dark. Discovery, consistent with recognized privileges, provides for the parties to obtain the fullest possible knowledge of the issues and facts before trial. Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir.1978). "The aim of these liberal discovery rules is to `make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'" Id.
Voluntarily disclosure sets the tone for the entire case. Opposing counsel quickly realizes that your client is moving the case forward and not playing games. Often opposing counsel will reciprocate. The transparent attitude then bleeds over into settlement discussions which can lead to agreements and resolution of the case. Early disclosures that facilitate quick resolution obviously save each side the expense of time, money and risk associated with drawn-out litigation and trial.
As the discovery code virtually assures that the evidence is going to come out at some point anyway, disclosures help avoid the costly penalties associated with discovery games and spoliation claims. There is no better feeling than responding to a request for production by referencing the date that the requested information had been previously disclosed. This proactive approach may significantly reduce the amount of time spent dealing with discovery. There is no need to waste money on attorneys fees fighting over discovery issues when that money could be better utilized preparing for trial and trying the case.
Judges can reward voluntarily disclosure. It is no secret that judges hate using precious court time to deal with discovery issues that could and should be handled between the lawyers. In a typical discovery dispute, two lawyers stand before the judge and point fingers arguing about with the other side has done wrong. Contrast this with the scenario of counsel who has been voluntarily disclosing throughout the case then has to bring a discovery motion against her opponent. In that situation, disclosing counsel makes the judge’s decision much easier.
To maximize the value and benefits of early disclosure, the disclosure requirements and the policies behind the requirements should be told to the client in the first meeting. Together with your client, identify and gather the documents and things that are part of required disclosures and that you will possibly use at trial. Organize and Bates-stamp the documents, then send coordinate their delivery to opposing counsel with a letter detailing the contents of the disclosures. As more information becomes available, the voluntary disclosure policy should be continued throughout the case up until the final pretrial conference.
Making voluntary disclosures early on brings the following benefits: it encourages settlement by demonstrating evidentiary strength of the case, it encourages the other side to reciprocate the good faith gesture, it speeds up the discovery process by narrowing the list of things that must be sought with formal discovery, it places focus on the more important issues in the case such as negotiation and preparing for trial, it eliminates any complaint of game-playing by the other side, it boosts your credibility in the event of any discovery dispute, it ensures preparation for trial presentation, and it eliminates complaint of surprise by the other side at trial. Game playing with evidence carries significant risks, including sanctions against us and even an order precluding use of the evidence at trial. There are too many benefits to early disclosures for us to ignore. Voluntary disclosures benefit the client, the attorney and the system as a whole.
Please join us at the monthly TCBA Litigation meetings. This section was established by trial lawyers for trial lawyers. Trial lawyers from all practice areas are welcome. Our goal is to improve as advocates in the courtroom. Meeting dates and speakers/topics for the upcoming year will be published soon. We hope you will join us and we look forward to meeting you soon.
Aaron D. Bundy
M. Shane Henry
Fry & Elder
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