By Clayton T. Robertson (Criminal Defense / Civil Rights Attorney)
Some attorneys hate discovery. Even though I don't understand why for reasons I'll discuss below, let me repeat: Some attorneys hate discovery, they hate requesting it with case-specific discovery requests, they hate reviewing it, they hate sifting through it, and they hate filing motions to fight for it if the other side isn't cooperating.
Before I go on, what is "discovery"?
Discovery is both informal and formal evidence, items, writings, communications, or other things. Informal discovery, roughly speaking, is the discovery you obtain through your own investigative efforts. It can happen before or after the filing of a complaint. Formal discovery is what you obtain from the other parties or side upon request. (There is a small jargon distinction here with criminal cases in which the discovery requests the defense makes to the prosecution are called "informal discovery requests," but in reality these are formal requests for discovery to the state.)
Why is discovery important? It's simple: Discovery allows you to find gaps or omissions in law enforcement's investigation, or sloppy mistakes, or comments by witnesses helpful to your case that might not be otherwise produced, or it helps you locate other witnesses in the first place, or it helps you obtain electronically-stored information from devices previously unknown to you, or any number of scenarios.
This matters on multiple levels. First, it improves your negotiations if one goal is to resolve or settle the case (this is up to the client). Second, it improves your chances at trial (if this is what the client wants with the attorney's input on the risks and benefits). Regardless, it ramps up the pressure on the other side. You make them work for it. Never let up. But at the end of the day, at least in criminal defense, it allows you to make sure you aren't missing exculpatory information showing your client is innocent, mischarged, or overcharged.
Trial attorneys always take the perspective that trial begins at the very beginning of the representation, and that starts with your first client interview, with your investigation, with informal discovery, and later with formal discovery. The bottom line is you prep a case by assuming it goes all the way. And that means trial.
