Disclaimer: I don’t know the difference between a tort, a torté, and a Pop-Tart. But here goes. . .
I know that you can subpoena people/get search warrants/otherwise compel evidence to be brought forth for a criminal trial. But what about civil trials, where the Plaintiff sues for damages against a Defendant? (The lawyer who sued the dry cleaners for an ungodly sum of billions of dollars over a lost pair of pants is what brought this to mind).
Can ‘Holier-than-Thine-Pants-Plaintiff-Guy’ get the civil trial judge to slap ‘Mom-and-Pop-Dry-Cleaner-Defendant’ with a subpoena and search warrant to produce evidence of either policies, other pants, or cellphone texts from Mom to Pop about said missing pants?
Or, is it just whatever is volunteered to the judge (by a deadline) is what’s admitted as evidence?
Tripler
Not asking for a friend. Do not need answer fast. Just curious. . .
Good question. I have no idea about the answer, but I’d like to expand the question a bit.
Suppose A is suing B for a bazillion dollars. I happen to have been in the vicinity and may have witnessed part or all of the event at the heart of the lawsuit. Can one of the parties subpoena me? Can I be forced to attend a disposition or trial? If so, do they have to compensate me for my time?
Otherwise, it seems to me I’d be the only one in the proceedings with an obligation but no financial interest. If one side calls an expert witness, that person will get paid (and often quite handsomely). Shouldn’t Lee Q. Citizen also be paid?
Oh boy. As a general matter, a party in a civil case can obtain (from the other party or third-parties) “discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” That’s a quote from Federal Rule 26, but I think most states have analogous rules.
You can’t get a search warrant; you can get a subpoena (although for parties you simply serve discovery requests). This is the main reason that civil litigation takes a long time; is staggering expensive; and is equally staggeringly profitable for the lawyers (reviewing documents coming in; reviewing documents going out; fighting over what was or wasn’t produced, etc.).
In theory the court is required to (and does) limit discovery to keep in reasonable; but, in your example, you can almost certainly get copies of pant-related policies; communications regarding the pants; communications regarding other pants, etc.
Well, this highlights my biggest problem with out judicial system – it treats ordinary people as grist for the mill. There are a lot of people who are financially harmed by being a witness – lost wages, commuting expense, child care for example – but the system simply does not care.
If it’s a criminal trial, I can see where the witness has an obligation to the community to participate (but even then, they ought to be made whole financially). When A is trying to line their pocket with B’s money, then I think reasonable compensation in addition to refunding any costs is due. And payable if the witness has to show up at the courthouse, even if never called because the parties decided to settle.
First, discovery is broader than “admissible evidence” at trial. Parties have a right to get a lot of things from the other party, and yes, third parties too.
The biggest abuse I usually see is not asking the defendant for documents, but the huge loss of privacy the plaintiff suffers. It’s not usual for the defense to ask plaintiff to download and provide all facebook content. Text messages, diaries, and medical records (including counseling records) are routinely demanded.
I’ve always found it amazing how in a civil case you are permitted such a broad ranging amount of discovery when all you are after is money damages, but in a criminal case your discovery is so much, much more limited, even if you are facing life in prison or the death penalty.
I am amazed just how extensive discovery is in the US. Elsewhere while the rules are similar, practice directions are that cards on the table, the plaintiff has to submit all documents to be relied on in his claim and the Defendant has to do the same in reply. You have to give a reason why to be allowed further.
A great trend in American civil litigation over the years has been the elimination or at least minimization of “trial by ambush.” AK84, the civil rules - and in my experience, the great majority of American judges - favor both sides knowing just what evidence the other side has. This encourages settlement and greater fairness at trial. A lawyer who purposely holds back a key witness or a killer exhibit that pretrial discovery ought to have disclosed may be barred from using that evidence at trial, Ohio Civ.R. 37(C )(1), and sanctions may be imposed.
Yes, but it is not just about the fairness of knowing what the other side will use. In civil cases, you can use the rules to make the other side provide evidence against them. It is very common for civil plaintiffs to make an allegation in a complaint that they have no way of proving until they get to start looking at the defendant’s records through discovery. I know this is GQ, so I’ll withhold my opinion on that, but it is far more than just basic fairness of the other side not being able to spring a surprise on you.
Years ago I was subpoenaed to testify in a civil case. The plaintiff was an attorney and she was suing someone I knew. IANAL, but it was obvious from what I knew, that she had no case. I had to attend arbitration, missing a day of work, where a panel of three attorneys found for the defendant.
She didn’t accept that ruling and took it up a level to a meeting in front of a judge. I had to attend, missing another day of work. The judge found for the defendant.
She then requested a jury trial. I had to attend that, missing a third day of work. From the beginning, she attempted to phone me but I never spoke with her. This trial was the first time I ever spoke. When I was called to testify, I tore her case to shreds with my replies. She asked the judge to allow her to treat me as hostile, he pointed out that I was her witness and she argued with the judge, complaining that I wouldn’t speak with her when she phoned me.
Eventually the judge asked me why I seemed so angry. I told him, complete with a few “F bombs”. He actually allowed me to blow off steam, then gave me a lecture about the justice system. Anyways, she lost again and that was the end of things. I missed three days of work and had to pay for parking.