Creating an effective pretrial discovery plan

By John Allison 

A lawyer’s ultimate goal when conducting pretrial discovery ought to be to maximize the chance for a favorable outcome in court. Decisions about the discovery tools that are used, and when they are used, should be guided by a pretrial discovery plan that is created for the particular case. 

Each case is unique. An effective pretrial discovery plan will take into account the claims and defenses that will be at issue, the parties involved in the case, and opposing counsel’s approach to litigation. For example, a discovery plan that works well in a product liability case will probably not be suitable for a commercial dispute involving allegations of fraud.

The first step in creating a discovery plan is to understand what you will need to prove and what the other parties in the case will try to prove. Then identify, by name or by category, the people who are likely to have information relevant to the case. Also identify the types of documents and tangible evidence that might be relevant and start thinking about the experts who may become involved in the case.

To create an effective pretrial discovery plan it will be helpful to consider questions such as these:  

        - Will it be best to limit initial interrogatories to questions seeking information about people with knowledge of facts relevant to the case, deferring contention interrogatories and expert witness interrogatories to a second set after the facts are more fully developed?

       - Are there tactical advantages to obtaining relevant business records and other documents directly from their custodian, rather than from the opposing party?

      - Would it be beneficial to take the opposing party’s deposition early in the case, to commit that party to a version of the facts before the testimony of other witnesses is known?

      - Would it be advantageous to refrain from taking the deposition of a third party witness and obtain a written statement or an affidavit instead?

      - Can requests for admissions be used to authenticate documents that you might want to offer as exhibits?

      - Does the complexity of the case, or the reputation of opposing counsel for gamesmanship, warrant seeking a case management order from the court?

Your pretrial discovery plan should be created before discovery begins. The plan can be modified as the case progresses to make adjustments for new information and procedural developments. 


John Allison is a professional career coach backed by years of experience as a successful lawyer. He is the founder of The Coach for Lawyers and author of "The Art of Practicing Law: A Practical Guide for Lawyers."