One of the most important phases of a commercial litigation or civil litigation case is discovery and inadequate fact discovery, in certain circumstances, can result in a legal malpractice claim . Fact discovery is the part of the litigation when the parties to the litigation, lead by their attorneys, investigate the facts and request information and facts from one another to help prepare the case as they move towards hearing or trial. Through discovery, the lawyers are able to further investigate and to seek the production of previously unknown facts that could be critical to the client’s litigation matter, whether the facts are good or bad for the client’s case. Common methods of discovery include written interrogatories, document requests (requesting the production of paper and electronic information) and depositions.
Legal malpractice stemming from an attorney’s inadequate fact discovery occurs when a lawyer fails to investigate, seek or discover critical facts pertaining to the client’s case. Depending on the circumstances and the effect on the outcome of the case, the failure to discover such critical facts could be found to constitute legal malpractice. Of course, each of the elements necessary for a legal malpractice claim must still be met, including damages caused by the attorney’s negligence in failing to adequately discover facts.
One example of inadequate fact discovery might be a lawyer failing to discover a particular witness and/or failing to take the deposition of a critical and necessary witness containing information that would directly affect the outcome of the client’s case. Another example of inadequate fact discovery is a lawyer failing to request the production of critical documents (or failing to adequately review critical documents) that directly affect the outcome of the client’s case.