Asking the right questions during discovery. Or knowing where to tap.

A homeowner has a plugged sink drain.  He tried a liquid drain cleaner.  He tried a plumbing snake. He tried a plunger, all to no avail.  Frustrated he called a plumber.  The plumber comes out, spends a few minutes observing the pipes and then goes to his truck to get a tool.  He returns with a pipe wrench and taps the sink drain pipes 3 times and the water in the sink just goes down.  The homeowner is delighted but dumbfounded.

So the plumber goes back to his truck and returns with an invoice for $75.00.  The homeowner looks at the invoice and exclaims to the plumber, “you only spend 6 minutes here and just tapped the pipe. How come the invoice is so high?”  Well, the plumber looks at the homeowner and says, “$15.00 for my time and $60.00 for knowing where to tap the pipe”.  Moral of the story, knowing what to do makes a difference.

Discovery in litigation is not much different.  Asking for documents and holding depositions is a manner of gathering information.  But the documents and answers in deposition are only as good as the questions asked. Like the plumber know where to tap, counsel need know what to ask and seek.

In work related injury litigation knowing what to ask for is important.  One of the elements both parties look to is standard of care.  In the work place injury/fatality perspective one source of standard of care can be the safety rules of the Occupational Safety and Health Act (OSHA) and Mine Safety Health and Safety Act (MSHA).  (In fact, some state courts have accepted that OSHA/MSHA can be used or considered as some form of standard of care in common law negligence matters.)

Some common safety precautions in the work place setting consist of the safety manual, safety training, documentation of safety training, equipment use training, etc. Knowing to ask about these documents may be helpful in identifying whether appropriate safety steps and precautions were in place at time of the event.

A safety expert witness can assist counsel in seeking the correct documents and suggesting the right questions during depositions.  Like any profession, there are certain recognized practices as being appropriate. Knowing to seek information about them is as important as knowing where to tap.

What do you think?