As a lawyer, I skipped the apprenticeship phase that constitutes the first part of most legal careers. Rather than having a wise elder to show me the ropes, I learned my craft by watching others practice, reading the rules until I nearly had them memorized, and sheer trial and error (mostly the latter). Ultimately, my practice survived because I studied a few things intently and stayed on familiar ground. Substantively, I stuck to wage-and-hour cases, and procedurally, I stuck to pre-trial litigation, principally discovery.

I got the best results for my clients through the discovery process, and after several years of fighting principally on the battlefield from Rule 16 through Rule 37, I developed a few principles that I hope can benefit others. Follow these 3 principles to make the discovery process work in your favor.

1. Don't ask for too much

While the Rules of Discovery are notoriously broad, it's often a serious error to request even a little too much. The more reasonable your discovery requests, the more unreasonable your opponent's evasions will appear to the judge. Generally, the elements of the claims and defenses in a case provide all the grounds you will need to conduct probing discovery. Tying each request to the elements (whether implicitly or explicitly) greatly increases the odds that you will prevail if you are forced to enforce the request through a motion to compel. Be especially careful with the words "all," "any," and "every." If you are too far-reaching in your requests, your opponent’s obstruction may seem warranted. However, if you have tied each request to specific elements, your opponent’s obstruction will likely appear unreasonable and your motion to compel will be granted.

In addition, always be sure that you know what you're asking for. Time and again, lawyers get frustrated when they get mountains of paper documents in response to their requests. But, in many cases, these lawyers failed to specify how they wanted documents produced. If you want digital files in a digital format and not printed, you need to specify.

2. Solve problems out of court

Most discovery disputes can be solved without the court's intervention, even with obstreperous and obstructionist opposing counsel. Resolving disputes requires patience and hard work, but it's almost always worth the effort because even a failed effort can ultimately be converted to victory. How does failure translate to victory? If you earnestly try to resolve a dispute but are undermined by opposing counsel determined to avoid discovery obligations, the judge will be very likely to take your side. I rarely filed motions to compel, but each time I did I was awarded fees. In my dealings with opposing counsel who initially ignored a discovery request, roughly 90% of the time I found that repeated letters, emails, and requests for in-person meetings resulted in an amicable solution to the problem. In the 10% of cases where nothing would persuade the other side to cooperate the record of my multiple attempts to resolve the issue without the court was viewed favorably by the court. Because of this, I ultimately got what I needed, and I was very happy to have the other side compelled to fund my efforts.

3. Know your tech

Today, discovery is e-discovery. They are one and the same thing because all of the good evidence is stored on computers, or in tablets, smartphones, watches, databases, and other high tech gadgets and devices. Of course, there's always witness testimony, but most witnesses have a dog in the fight and have been prepped exhaustively. Every once in awhile, a witness unexpectedly reveals a hidden truth, but it is a rare event. Consequently, e-discovery is how one finds the good evidence - the kind that wins cases. If cross examination is an engine for revealing the truth, it is a weed whacker next to a Mack Truck when compared to e-discovery. But getting good results from e-discovery requires some computer literacy. There’s no need to learn how to write code or perform a forensic examination of a hard-drive, but one must know something about databases, digital storage media, hashes, and file systems in order to take full advantage of e-discovery practices. Taking the plunge and investing a week in a program like the Georgetown E-discovery Academy or at least reading some of Craig Ball's wonderful blog posts and articles is a very good start and will surely pay dividends. A basic knowledge of modern technology goes a long way in e-discovery.

Discovery can make and break cases, so getting what you need to serve your client is essential. Taking a structured approach using the guidelines above should result in better outcomes during the discovery process.