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Legal Theory and Procedure: Discovery

The concept of discovery can be perceived as a mutual process of trading information in court. In this case, the parties that are involved provide their best effort to find the most relevant evidence to present it in court. The long-term objective of discovery is to showcase the evidence that may be obtainable throughout the process of trial to both the alleged victim and the criminal (Uzelac 14). The value of discovery consists in the fact that it eradicates the possibility of a trial-by-ambush where parties are not aware of the evidence that will be presented by the other party. One of the key notions related to discovery is a deposition. The latter can be either written, filmed or both (Phillips et al. 78). Usually, they are utilized during the preparation for trial but can also be used throughout the probationary period. Also, discovery is valuable because verbal depositions can be witnessed by both the suspect and the accuser. Therefore, both parties are able to access the evidence of the other party and foresee the statements that will be used during the trial. Deposition can also be called an oral investigation in case if the witness will have no possibility to make their way to court throughout the day of the trial (Reid 29).

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On the other hand, discovery may be detrimental because of the interrogatory, cross-examining nature of the procedure. It is rather common that both sides involved in the legal case are more confused with this methodology rather than ready to use the obtained evidence against the other party. Another detrimental part of the discovery is subpoenaing. This means that the evidence presented by the other party has to undergo a physical checkup in order to be validated. The legitimacy of the evidence used in court is a rather biased and dual concept, so it is important to pay close attention to it. There are numerous other factors that allow us to consider discovery a pivotal process inherent in the concept of litigation that can be both affordable and fair at the same time (yet, detrimental as well) (Kerley 43). First and foremost, there should be a confirmation from the court allowing the parties to use their documents as evidence at trial. Conversely, there is an issue with the failure to discover evidence which can result in detrimental outcomes. Also, the damage that can be caused to the case and the litigant is directly dependent on the evidence (documents) that is ultimately obtained by both parties (Thomson 101). Nonetheless, the value of discovery lies in the fact that it reduces the possibility of the “surprise element” where one of the parties is caught by surprise. Regardless, the fairness of discovery can be easily disregarded by the evidence presented by the opposition because it can either destroy the allegations or support the plaintiff.

Any facts regarding the case and discovery should be discussed prior to disclosing the evidence at trial. The fairness of the process of collecting evidence is supported by the fact that if one is caught hiding evidence throughout discovery, they will be penalized and the other party will win the case. So as to make the most out of their discovery process, both parties have to be completely honest with each other. If it is not the case, the value of the procedure of discovery will tend to zero. Despite its positive connotation, discovery should be implemented watchfully because it is one of the most valuable assets in litigation.

Works Cited

Kerley, Peggy. Civil Litigation. Delmar, 2016.

Phillips, Amelia, et al. E-Discovery: An Introduction to Digital Evidence. Delmar, 2017.

Reid, Colette. Civil Litigation. Oxford University Press, 2014.

Thomson, David. Skills & Values: Discovery Practice. LexisNexis, 2014.

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Uzelac, Alan. Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems. Springer, 2016.

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