PEEKING BEHIND THE CURTAIN
At the end of The Script, we explained that when your Complaint is filed, your lawyers principally know what you know. You have your insurance policy, correspondence with the insurance company, estimates, photographs, emails, text messages, your scrapbook, and whatever otherinformation you and your legal team were able to gather before filing the lawsuit. But you only know your side of the story. The insurance company knows a lot more.
It has your claim file. It has internal emails and communications. It may have communications between your adjusters and their supervisors. It has policies and procedures explaining how claims are supposed to be handled. It has training materials. It may have information about how other claims arising from the same wildfire were handled. And somewhere inside the company may be documents explaining who made the decisions that affected your claim, why those decisions were made, and whether similar decisions were made concerning other policyholders. You haven't seen most of that information. Now that the lawsuit has been filed, you get to start looking for it.
The process of obtaining information and evidence from the other side in a lawsuit is called Discovery.
Think of Discovery as your opportunity to peek behind the curtain.
Discovery is much more than lawyers exchanging piles of documents. It is an investigation. Your lawyers are trying to figure out what really happened inside the insurance company and why it happened. Did things happen by accident? Or were they intentional?
Who made the decisions concerning your claim? What information did they have when they made those decisions? Were company policies followed? Did supervisors approve what happened? Were adjusters given instructions concerning how wildfire claims should be handled? Were other policyholders treated similarly? Did decisions that appeared to have been made by your individual adjuster actually originate somewhere much higher in the organization?
Remember one of the themes we discussed in The Script. Your insurance company would probably prefer to characterize your lawsuit as a one-off dispute about the handling of a single insurance claim. Discovery gives your legal team an opportunity to find out whether that is really true. If you believe that what happened to you was part of a larger pattern, Discovery is where your lawyers begin looking for the evidence to prove it.
Lawyers have several different tools they can use to conduct Discovery. Each tool serves a different purpose.
Requests for Production of Documents are exactly what they sound like. Your lawyers identify categories of documents and information that they want the Defendant to produce. In an insurance lawsuit, this may include your claim file, internal emails, policies and procedures, training materials, communications between adjusters and supervisors, and potentially information concerning other policyholders.
If you are looking for the proverbial needle in the haystack, Requests for Production are one way of getting access to the haystack. Interrogatories are written questions that the other side generally must answer in writing and under oath. They can be used to obtain facts, identify people with relevant knowledge, learn the Defendant's positions on important issues, and identify information that can be pursued through other forms of Discovery.
For example: Who made a particular decision concerning your claim? Who approved it? What facts does the Defendant rely upon in denying one of your allegations? Requests for Admission ask the other side to admit or deny specific facts. Unlike an Interrogatory, which asks the Defendant to explain something, a Request for Admission can force the Defendant to take a position: Admit it or deny it.
They can help establish facts that don't need to be fought over later and, just as importantly, identify the facts that remain in dispute. Subpoenas allow your lawyers to obtain documents or testimony from people and businesses that aren't parties to the lawsuit. Sometimes important evidence isn't in your possession or the insurance company's possession. It may be sitting with a contractor, consultant, bank, government agency, former employee, or some other third party.
Depositions allow lawyers to question witnesses under oath. Unlike written Discovery, Depositions allow the lawyer to hear an answer and immediately ask the next question. They can be used to find out what a witness knows, explore documents and prior answers, pin down testimony, test credibility, and learn what the witness is likely to say if the lawsuit goes to trial. Good lawyers don't simply use every tool because it is available.
Think of Discovery as an investigation. Your legal team should have an idea of what it is trying to find, and then select the right tools to go looking for it. And sometimes one tool leads directly to another. An Interrogatory may identify the executive who approved a particular policy. A Request for Production may uncover an email written by that executive. That email may lead your lawyers to take the executive's Deposition.
Discovery is not simply a collection of independent requests. Done well, it is a strategy.
In a lawsuit against your homeowners insurance company, some of the most important evidence may be documents you have never seen. Your lawyers will likely seek documents concerning the handling of your particular claim. But depending upon the allegations in your Complaint, they may want to look considerably further.
They may seek internal policies and procedures. Training materials. Communications between adjusters and supervisors. Internal emails. Organizational charts. Compensation or incentive information. Information concerning other policyholders. Documents relating to management decisions. And other information that might help explain not only what happened to your claim, but why it happened. This is where the way your Complaint was written can become particularly important.
If your lawsuit alleges only that an adjuster made a mistake handling your individual claim, the relevant Discovery may be relatively narrow. If your lawsuit alleges that what happened to you resulted from broader company practices, policies, or management decisions, your lawyers may have a basis to look much deeper inside the organization.
That is another reason why we emphasized in The Script that you should think carefully with your legal team about whether your facts support something more than a garden-variety claim dispute.
You cannot prove systemic wrongdoing if you never get the chance to examine the system.
Unfortunately, your lawyers don't simply send the insurance company a request for information and receive everything they asked for a few days later. Far from it. Many times, the Defendant will object to your Discovery requests. Sometimes it will provide only part of the information requested. Sometimes it will provide an answer that doesn't really answer the question.
Sometimes it will claim that the requested information is irrelevant, overly broad, burdensome, confidential, or protected by attorney-client privilege. And sometimes you may get the distinct impression that the Defendant simply doesn't want you to see what is behind the curtain. In some cases, there may be a very good reason for that!! Disagreements over what information must be provided are called Discovery disputes, and they are common in lawsuits.
The lawyers will usually first try to resolve these disputes among themselves. If they cannot, they may need to ask the Court to resolve them.
As we explained in Showtime, in Federal Court many Discovery disputes are handled by the Magistrate Judge—the Assistant Director in our theatrical production. The Magistrate Judge may ultimately decide whether the Defendant has to answer the question, produce the document, or provide the other information that your legal team is seeking. Think of your lawsuit like a war.
Discovery disputes are battles that may be fought throughout the war.
Some battles will be very important. Others will be less important. Some will be lost. Others will be won. And every battle costs something.
Discovery disputes require lawyer time. They can involve lengthy exchanges between the lawyers, legal research, written motions, hearings, and sometimes substantial expense. Not every Discovery battle is worth fighting.
The objective isn't to win every battle. It is to win the battles that matter.
When a Discovery dispute results in a hearing, your lawyer may tell you that you don't need to attend. Your lawyer may be absolutely right. You probably don't need to attend. Go anyway. Put on a suit or other professional attire, go to the courthouse, sit quietly, and watch.
In fact, as a general rule, if there is a hearing, oral argument, or other court proceeding in your lawsuit that you are permitted to attend, the professional client should be there.
Downtown Los Angeles may not be the most convenient or pleasant place to spend a morning. You may have to fight traffic, find parking, go through courthouse security, and then sit around waiting for a hearing that lasts twenty minutes. Go anyway.
There is an enormous amount you can learn by simply sitting in the courtroom and watching your lawsuit unfold. And there is another reason to be there. You want the Judge to see that you care enough about your lawsuit to show up.
Your presence isn't going to change the law, and you shouldn't expect the Judge to rule in your favor simply because you are sitting in the courtroom. That's not the point.
You are the Plaintiff. This is your lawsuit. If something is important enough for your lawyers to appear in court and argue about, there is something to be said for the Judge looking into the courtroom and seeing that you cared enough to be there too. You aren't there to perform.
You aren't there to react to arguments, shake your head when you disagree, whisper to your lawyer, or make faces at opposing counsel. You are there to sit quietly, professionally, and pay attention.
Show the Court that you take your lawsuit seriously. Then start watching. Start with the Magistrate Judge.
As we discussed in Showtime, in Federal Court the Magistrate Judge will often decide Discovery disputes. Reading the Magistrate Judge's written rulings is one thing. Watching the Magistrate Judge question the lawyers is something entirely different.
What does the Magistrate Judge seem to care about?
What arguments seem persuasive?
What arguments seem to irritate the Magistrate Judge?
Does the Magistrate Judge appear skeptical of one side?
Does the Magistrate Judge seem fair?
You can learn things by watching that you will never learn from reading an order afterward. The same is true of the District Judge. If there is an oral argument before the Judge, go. You have spent a lot of time wondering about the person who may ultimately preside over your trial. Now you have an opportunity to watch that person work. Take it. But you aren't just watching the judges. Watch your own lawyers.
How well prepared are they?
How well do they know the facts?
How well do they know the law?
How do they respond when the Judge asks a question they weren't expecting?
Can they think on their feet?
Do they answer the question directly?
Do they maintain their composure when the Judge challenges them?
Do they know when to push back and when to sit down?
And perhaps most importantly: Does your legal team seem overmatched?
You hired these people to represent you in a lawsuit against a multi-billion-dollar insurance company. If the case eventually goes to trial, these are the people you may be going to war with. See them in action. You should also watch opposing counsel.
How good are they?
How prepared are they?
How do they respond under pressure?
What arguments do they emphasize?
Does the Judge appear receptive to them?
Does the Judge seem to respect them?
How do they compare to your lawyers?
All of this is information. And don't just arrive for your hearing and leave as soon as it is over. Get there early. Stay afterward.
Watch the Judge handle other cases. Watch other lawyers argue. See how the Judge responds to lawyers who are well prepared and lawyers who aren't. Watch what good courtroom lawyers do well—and what less effective lawyers do poorly.
You may learn as much watching somebody else's case as you learn watching your own. There is another benefit. If you have never spent much time in a courtroom, a courthouse can be intimidating. So make it less intimidating. Spend some time there. Learn where to go. Learn how a courtroom operates. Watch the Judge enter. Watch lawyers argue. Listen to the questions the Judge asks. See what happens when a lawyer doesn't know an answer. Watch a hearing begin and end. The more familiar the environment becomes, the less mysterious it becomes. We tend to fear the unknown.
Make it known.
If your lawsuit eventually goes to trial, the courtroom shouldn't feel like a strange place that you are walking into for the first time.
In Center Stage, we discuss how everybody is watching you during your Deposition. The Defendant's lawyers aren't simply listening to your answers. They are evaluating how you might appear to a jury.
Court proceedings give you an opportunity to turn the tables. Everybody else is performing. You get to watch—and learn. That doesn't mean you should overreact to one bad hearing.
Every lawyer has a bad day. A Judge may disagree with your lawyer because your side simply had the weaker legal position on that particular issue. Losing an argument doesn't mean you have the wrong legal team. Look for patterns.
If you repeatedly come away from hearings concerned about your legal team's preparation, judgment, ability to think on their feet, or performance under pressure—or if your legal team repeatedly appears overmatched—talk to them about it.
And if those concerns continue, you may eventually need to consider whether changes should be made to the team or whether additional help should be brought in. It is much better to figure that out during Discovery than at trial. The same principle applies to your assessment of the Judge, the Magistrate Judge, and opposing counsel.
You don't learn any of this sitting at home waiting for your lawyer to call and tell you what happened. Your lawyer attended the hearing as an advocate. You attended as an observer and a student.
Watch. Listen. Learn. A Professional Client never misses an opportunity to learn from the action.
As the client, you should understand what important information your lawyers are trying to obtain, why the Defendant is refusing to provide it, and whether obtaining that information is important enough to justify the time and expense required to fight for it.
There is also a strategic component to Discovery that goes beyond simply obtaining information. Whenever possible, you want to be the forthcoming Plaintiff. When the Defendant legitimately asks for information, provide it to your legal team. Let your legal team determine what the Defendant is legally entitled to receive.
At the same time, if the Defendant repeatedly refuses to answer legitimate questions or produce information that it should be producing, that can begin to tell its own story. You want the record to show a Plaintiff who has been forthcoming and has nothing to hide, and a Defendant that has had to be pushed to disclose important information. And sometimes the reason a Defendant doesn't want to produce something is exactly the reason you want to see it.
There is another side of Discovery that clients sometimes overlook. The insurance company gets to investigate you.
Its lawyers can request documents from you. They can ask you written questions. They can subpoena records from third parties. They can investigate the damages you are claiming.
Depending upon the issues in your lawsuit, they may ask for emails, text messages, photographs, financial information, rebuilding records, receipts, communications with contractors, communications with public adjusters, prior insurance information, and other records.
Some of their requests may seem intrusive. Some may seem completely unrelated to what you believe the lawsuit is about. Your lawyers can object when appropriate. But if the information is legitimately discoverable, you may have to provide it even if you would prefer not to. This is part of what you signed up for when you decided to become a Plaintiff. Remember, as the Plaintiff, you are the star of the show. All eyes are on you.
This includes during Discovery, when the Defendant's legal team will attempt to learn everything it can about you that may help defend the lawsuit, reduce its value, or attack your credibility.
You wanted to peek behind the insurance company's curtain. They get to peek behind yours.
Discovery is also one of the first stages of the lawsuit where being a Better Client can make an enormous difference.
Your lawyers are going to ask you for information and documents. Give them everything they ask for. Be over-inclusive. Don't make your lawyers repeatedly chase you for emails, records, photographs, text messages, or answers to questions. And don't decide for yourself that something isn't important, isn't relevant, or doesn't need to be produced.
That is your legal team's decision. Not yours. There is an important distinction here. Giving a document to your lawyer does not necessarily mean that your lawyer will give that document to the Defendant.
Your job is to make sure your legal team has everything. Your legal team's job is to determine what is responsive to the Defendant's Discovery requests, what must be produced, what can legitimately be withheld, and whether an objection should be made.
You should err on the side of giving your legal team too much rather than too little. You never want to find yourself in a situation where the Defendant discovers a document from another source and accuses you of withholding evidence—or where your own lawyer learns for the first time that you had something that should have been disclosed. And certainly don't delete, destroy, alter, or hide something because you think it might hurt your lawsuit.
If you think something might hurt your lawsuit, that is even more reason to give it to your legal team.
Let your lawyers figure out what to do with it. But your responsibility goes further than simply providing the documents your lawyers request. Everybody has things in their past that they may not be proud of.
Do you have a criminal record? Have you had a DUI? Have you declared bankruptcy? Have you been divorced six times? Is there anything else in your personal, professional, or financial history that you would be uncomfortable having somebody ask you about? Whatever it is, tell your legal team about it up front.
As you may recall, in Showtime, we said that one of the jobs of the Defendant is to make the hero look bad and their client, the antagonist, look good. The Defendant's legal team will look for information that can hurt your credibility. But they may also look for information that can simply embarrass, surprise, or rattle you. Imagine sitting in your Deposition for several hours answering questions about your insurance claim when the Defendant's lawyer suddenly asks:
Isn't it true that you have been divorced six times?"
Maybe the question is relevant. Maybe it isn't. Maybe your lawyer objects and you never have to answer it. That isn't the point. The point is that you don't want that to be the first time you and your lawyer have thought about how you will react when the question is asked.
A surprise question about something painful or embarrassing in your past can knock you off balance and affect how you respond to the questions that follow. Your lawyer cannot prepare you for something your lawyer doesn't know about. The overall point is that it is better to tell your legal team too much rather than too little. Your legal team should never learn something potentially damaging or embarrassing about you for the first time when the Defendant brings it up.
Don't just give your legal team what they ask for. Tell them everything. Let them decide what is relevant, what must be produced, what can be kept out of the lawsuit, and—just as importantly—what you should be prepared to deal with if someone asks you about it anyway.
Remember that the insurance company is approaching Discovery as a business matter. Its lawyers are looking for evidence that helps reduce the value and risk of your lawsuit. That includes evidence they can use to attack your credibility as the Plaintiff and star of the show. You should approach your responsibilities with the same seriousness.
Discovery can yield massive amounts of information. Thousands of pages of documents. Emails. Claim notes. Policies and procedures. Training materials. Spreadsheets. Written responses to Interrogatories and other Discovery requests.
Often, your legal team is looking for the proverbial needle in a haystack. AI can be very effective at reviewing and analyzing large amounts of information. Do not hesitate to upload Discovery requests and responses into the AI project that you created for your lawsuit.
Every Interrogatory, Request for Admission, Request for Production, and other Discovery request should be uploaded, along with the responses to those requests. And don't just upload them.
When your legal team sends Discovery to the Defendant, ask your AI agent to explain the requests to you. What information is your legal team seeking? Why might that information be important? What does your legal team hope to find?
If you don't know what your legal team is looking for, ask your AI agent. Better yet, ask your legal team. When the Defendant responds to Discovery, upload the responses as well. Ask your AI agent whether the Defendant actually answered the questions that were asked. Ask it to identify objections, incomplete responses, inconsistencies, unusual language, or documents that appear particularly important. As documents begin pouring in, use AI to help you look for the needle in the haystack.
If you know what you are looking for, tell your AI agent what to look for. Maybe you are looking for references to a particular executive. A particular claims practice. Instructions given to adjusters following the wildfire. Communications about reducing claim payments. References to other policyholders. A particular
date, meeting, decision, or company policy. If you don't know what you are looking for, ask your AI agent what appears unusual or important. We are not suggesting that you use AI as the primary reviewer of Discovery materials. That is your legal team's job.
But AI can be an extremely valuable second set of eyes.
Your lawyers and their staff are human. They may be reviewing thousands or tens of thousands of pages of documents. Something important can be overlooked.
AI gives you another opportunity to find something that somebody else may have missed. And if you find something that looks important, send it to your legal team and ask about it.
That is another example of what we mean by becoming a better client. You are not trying to become your own lawyer or replace your legal team. You are using the tools available to you to become better informed and to add something to the process. Discovery is too important for you to simply sit back and wait for your lawyers to tell you what they found.
As Discovery progresses, don't become so buried in the mechanics that you lose sight of the objective.
The goal isn't to collect the largest number of documents. The goal is to find the right documents. The email that contradicts the official explanation. The claim note that identifies who actually made a decision. The policy that wasn't followed. The training material that explains why several adjusters behaved the same way.
The communication showing that what appeared to be an isolated event wasn't isolated at all. You may find those documents. You may not. That's why it's called Discovery.
You are trying to discover what is actually behind the curtain. But documents and written responses only tell part of the story. Eventually, your lawyers are going to want to ask people questions about those documents, the decisions they made, and what happened inside the insurance company. And the insurance company's lawyers are going to want to ask questions of you. They do that through Depositions. For you, that means taking Center Stage. And that is where we go next.
Discovery is your opportunity to peek behind the curtain. When your lawsuit begins, your lawyers principally know your side of the story. Discovery is how they begin finding out what the insurance company knows.
Discovery is an investigation, not simply an exchange of documents. Your legal team should be looking at what happened, why it happened, who made the decisions, and, where appropriate, whether the same thing happened to other policyholders.
Different Discovery tools have different jobs. Requests for Production obtain documents. Interrogatories ask written questions. Requests for Admission force the Defendant to admit or deny particular facts. Subpoenas obtain information from third parties. Depositions allow witnesses to be questioned under oath.
Discovery should have a strategy. One Discovery tool may lead to another. The objective is not to use every tool available. It is to use the right tools to find the evidence needed to prove your lawsuit.
The allegations in your Complaint can determine how deeply you can investigate the insurance company. You cannot prove systemic wrongdoing if you never get the chance to examine the system.
Asking doesn't mean getting. Defendants may object, provide incomplete answers, or refuse to provide information. Discovery disputes are common and, in Federal Court, are frequently resolved by the Magistrate Judge.
Not every Discovery battle is worth fighting. Discovery fights cost time and money. The objective isn't to win every battle. It is to win the battles that matter.
Go see for yourself. Attend hearings, oral arguments, and other court proceedings whenever you can. Watch the judges, your lawyers, opposing counsel, and even other cases. Let the Court see that you take your lawsuit seriously, and become familiar with the courtroom before you ever have to perform in one. A professional client never misses an opportunity to learn from the action.
Be the forthcoming Plaintiff. Give your legal team everything.
Be the forthcoming Plaintiff. Give your legal team everything they ask for and err on the side of being over-inclusive. Let your lawyers—not you—decide what ultimately needs to be produced to the Defendant.
Never hide, destroy, alter, or withhold evidence. If you think something might hurt your lawsuit, that is even more reason to give it to your legal team.
Don't let the Defendant surprise you with your own history. Tell your lawyers anything that could potentially embarrass, discredit, surprise, or rattle you. Your lawyer cannot prepare you for something your lawyer doesn't know about.
Discovery works both ways. You get to peek behind the insurance company's curtain, but the insurance company gets to peek behind yours.
Use AI as a second set of eyes. Upload Discovery requests and responses to your AI agent. Understand what your legal team is looking for and use AI to help review large amounts of information and identify things that may have been missed.
Don't confuse volume with success. Your legal team may receive thousands of pages. The objective isn't to collect the most documents. It is to find the evidence that matters.
Documents only tell part of the story. Eventually, the lawyers will want to question the people who created those documents and made the decisions reflected in them. For you, that means taking Center Stage.
