While TV shows and movies about lawsuits often involve earth-shattering surprises revealed for the first time at trial, in real litigation life, the goal of the system is to eliminate such happenings. The idea is that if we can force all parties to put their respective cards on the table as soon as possible, we are that much closer to getting the dispute resolved, thereby hopefully preserving precious judicial resources.
This is accomplished by the process known as “discovery,” whereby each side in a lawsuit is permitted to discover facts about the other side’s case. It is usually a major phase of any lawsuit, and often involves a fair amount of disputes of its own. And that’s generally OK—parties can have reasonable differences of opinion about what information really needs to be produced. But other times, litigants play games in the discovery process, and that’s not OK.
In a recent home foreclosure case, the defendant asked the plaintiff whether she contended that notice of a trustee sale was mailed to her in compliance with statute. Her sworn response was “Unsure.” Later on in the case, however, when the defendant sought summary judgment based on the lack of factual disputes, the plaintiff’s amnesia wore off: Her new, sworn response was that she was certain the notice was not mailed to her.
The court didn’t go for it. It was simply unfair for the plaintiff to claim ignorance at one point and to then suddenly remember when her case was on the line. As the court put it: “A party opposing summary judgment may not move the target after the proponent has launched its arrow.” The Court of Appeal affirmed the lower court’s grant of summary judgment for the defendant.