Once an Unlawful Detainer lawsuit is filed and the tenant decides to contest the eviction the process called “discovery” is a very important tool that can assist the landlord’s attorney in preparing for trial.
Whether the tenant is representing himself or herself or has hired counsel, discovery is a critical weapon in an attorney’s arsenal to ferret out the factual and documentary basis for the tenant’s claims that the Landlord should not be allowed to evict the contesting tenant. This is especially important in preparing for a jury trial against BASTA or any of the other tenant defense attorneys.
What is discovery is question landlords often ask his or her attorney – and why should they pay the attorney for this process? The most basic answer to the question of why the landlord should pay the attorney to engage in the discovery process is to ask the Landlord would you go into a battle without first trying to find out what your enemy will fight with?
Discovery is most aptly described as a process where each side tries to find out what the other side is going to use at trial to support the claims made in the Unlawful Detainer lawsuit. Both sides to an Unlawful Detainer lawsuit have the right to conduct discovery.
The defendant’s attorney in an Unlawful Detainer lawsuit will always send Forms and Special Interrogatories to determine the facts that the Landlord is going to use to prove that the tenant should be evicted.
The Defendant’s attorney will also send out a Request to Produce Documents which is used to determine what Documents the Landlord must support his claim with that the tenant should be evicted, and may also use Request For Admissions to force the landlord to admit certain facts that will assist the tenant in defending himself or herself.
The landlord’s attorney may also want to send out Interrogatories to the tenant/tenant’s attorney, Request to Produce Documents and Request for Admissions, to determine the facts and documents the tenant is going to use to show that the landlord should not be able to evict him or her.
Why is discovery necessary and important? First, would you want to go into a battle without being fully prepared? Would any sports teams want to go into a game without scouting or watching films on its opponent?
The process of discovery is getting ready to go into the battle of a trial. Knowing the facts and documents your opponent may use at trial to defeat the landlord’s claims in the lawsuit is really the only way to ensure a victory. Without sending out interrogatories (questions) and request for production of documents to the tenant, how will the landlord know, before trial, whether the tenant has photographs that supports the tenant’s claims that the property is uninhabitable? Pinning the tenant down on what evidence the tenant may have and is going to use at trial is also a very important reason to promote discovery.
There is an adage that any good trial attorney will always adhere to which is never ask a question of a witness that you don’t already know the answer. Without conducting discovery, the Landlord’s attorney will not know the questions to ask – and will never know the answers the tenant may give.
Second, if the tenant refuses to respond to the Interrogatories (Questions), Request for Admissions and/or Request for Production of Documents the Landlord can force the tenant to do so by filing a Motion(s) to Compel the tenant to do so and request sanctions and attorney fees. This can be quite intimidating to tenants who are representing themselves and to some tenant’s attorneys who do not want to be forced to go before the court and advise the court why his or her client (tenants) are not participating in the discovery process.
Third, as part of preparing for trial a Motion to Exclude all evidence not produced by the tenant can be filed at the time of trial. This is called a Motion in Limine and if granted ensures a Landlord’s victory because the tenant will be unable to defend himself or herself.
Fourth, the tenant’s responses to the Interrogatories (Questions) or Request to Produce Documents if used properly at trial can be used to prove the Landlord’s case or to impeach the credibility of the tenant whose responses or documents differ from the trial testimony or the documents introduced by the tenant at trial.
Finally, discovery is a tool that can promote an understanding of the issues and evidence to allow the parties to come to amicable settlement.
Capital One has use the phrase “Don’t leave home without it” to promote their credit cards. The phrase don’t go to trial without conducting discovery should always be adhered to by a savvy landlord/landlord attorney. Going to a jury trial without having conducted discovery is like going to war without your weapons. Going to trial is like going to war and like going to war preparation for trial is always the key.
At Fast Eviction Service, help on any of the issues discussed in this article is simply a click or phone call away. Email firstname.lastname@example.org or call our office at (800) 686-8686 to discuss your questions for a free evaluation of your case.
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