Operating by the book: Follow the rules of the Discovery Act for your Trust or Will Lawsuit


Obtaining evidence before your trial takes place is governed by a thorough set of rules found in the California Code of Civil procedure and known as the Discovery Act. The Discovery Act is meant to make evidence equally available to all parties, and allow for a more transparent trial. And while that may be true, it is up to you to use the methods provided to you under the Discovery Act, and (more importantly) enforce those methods.

The problem with modern discovery methods is that the process is often abused. Responses are incomplete, irrelevant objections are made, documents are never produced, the list goes on and on. And once you receive bad responses to discovery, you have the burden of “meeting and conferring” on the responses (meaning you talk to the other side and try to work out a resolution), and then filing a motion to compel (if you don’t get what you want after the meet and confer process).

In other words, enforcing your rights under the Discovery Act takes patience, time, and money. But if you are going to follow the rules and have the rules work for you, then you need to go through the process.

Many times lawyers will ignore the rules and instead try to do discovery by stipulation. A problem arises, however, when the stipulations are not followed or a difference of opinion arises. And then one side rushes off to the courthouse for an order.

I once heard a judge say to a group of lawyers that if they were not going to follow the rules of the Discovery Act when conducting discovery, then why should he enforce them later? The judge was frustrated that no one had followed the rules and the whole process had become confusing and difficult to sort out. It was a good point and one I remember to this day. The rules of the Discovery Act are there for a reason, follow them…period.

Well that’s not as easy as it sounds. The problem with following the rules of the Discovery Act is that it requires a good deal of effort to meet and confer, and then file a motion to compel. Those are not easy, simple things to do. They sound simple, but no. For example, a motion to compel requires a notice of motion, the legal arguments all laid out, and a separate statement where you detail each of the discovery requests, the given response, and explain why it is legally deficient. That’s a lot of work.

Most lawyers don’t want to put in this much effort, most clients don’t understand why they have to pay for all of that, and the process is not followed.

But consider this, if you follow the rules of the Discovery Act and obtain the information to which you are entitled, then your case becomes much easier come time of trial. And in many cases a far better settlement will come your way because you have better evidence and the other side knows it. Plus, if most people don’t want to put in the effort to follow the rules, then your choice to enforce the rules gives you a distinct advantage in litigation.

Following the rules of the Discovery Act is definitely an investment, but it typically pays big dividends over the life of your lawsuit.