Discovery is the part of litigation everyone claims to hate, until they lose a case because of it.
Young lawyers will tell you discovery is “paperwork.” Senior lawyers will sigh and call it “a grind.” Judges will roll their eyes and treat it like an administrative nuisance that keeps them from the real work.
That attitude is exactly why discovery wins cases.
Not at trial. Not at the dispositive motion hearing. Not on some dramatic cross-examination clip you dream about replaying in your head on the drive home.
Discovery wins cases quietly. Incrementally. Methodically. It wins cases by building leverage, forcing admissions, and shrinking the other side’s runway until they have nowhere left to land.
If you’ve been treating discovery like a box to check, here’s a better way to think about it with a beginning, middle, and end that will actually carry your case from “file opened” to “case resolved.”
The beginning: Stop “doing discovery” and start planning a case
Before you write a single interrogatory, before you copy-and-paste your firm’s form requests, before you send a boilerplate preservation letter that nobody reads, you need to decide what game you’re playing.
Litigation is chess, not checkers.
In checkers, you react. You make the obvious move. You chase what’s directly in front of you.
In chess, you’re thinking eight moves ahead. You’re anticipating what your opponent is trying to do, you’re setting traps, and you’re building toward an endgame from move one. Discovery is where that endgame is designed.
So the first move isn’t drafting. The first move is clarity.
Ask yourself:
- What’s my theme?
- What’s their theme?
- What facts do I need to prove mine?
- What facts do I need to prevent them from proving theirs?
- What admissions do I need locked in early so nobody can “clarify” later?
If you can’t answer those questions, you’re about to spend months exchanging words and documents without direction. You’ll drown in paper and call it “progress.”
And while you’re doing that, the other side might be building a narrative you can’t undo.
Here’s a truth that doesn’t get taught enough: the first side to establish themes and drive discovery to support those themes usually has the upper hand. Because themes aren’t something you slap on later like a coat of paint. Themes get built, brick by brick, through the record.
Written discovery is one of the earliest opportunities you have to lay those bricks and force the other side to help you do it.
That’s also why you need to read their discovery differently.
When opposing counsel sends interrogatories and requests for production, they’re not just asking for information. They’re telegraphing what matters to them. Their written discovery often reveals their theory of the case, the witnesses they care about, the documents they think exist, and the issues they want to frame.
Treat their discovery like a confession. Study it. Learn what they’re building.
Then do the one thing younger lawyers rarely do: don’t telegraph your own case theory with sloppy, obvious requests. Ask for what you need, but don’t announce your whole plan in neon.
This is the beginning of discovery: not sending paper, but building a strategy.
The middle: Discovery is project management, psychology, and controlled aggression
Once the plan is in place, the work begins. And this is where most cases get ugly, not because the law is hard, but because humans are messy.
Clients are disorganized. People miss deadlines. Information lives in places nobody anticipated. Opposing counsel can be unreasonable. Judges are busy. And then you’ve got the constant pressure of: “We need this done yesterday.”
If you want to run discovery well, you have to stop treating it like a purely legal exercise. Discovery is also project management. The lawyers who thrive are the ones who develop systems and repeatable workflows.
You can reduce most of the law practice to checklists. Discovery especially.
A real discovery checklist isn’t glamorous, but it’s the difference between controlling a case and chasing it. At minimum, it should force you to do the basics every time:
- preservation/litigation hold reminders
- identifying custodians early
- identifying systems (email, chat, shared drives, CRM, phones)
- building initial requests that match the themes (and tailored add-ons)
- calendaring deadlines with internal reminders
- planning privilege review instead of panicking at the end
- thinking through production format early
- sequencing depositions around document production, not the other way around
This doesn’t make you robotic. It makes you safe. It reduces “I forgot” and “I assumed.” And “I assumed” is the birthplace of malpractice.
Now let’s talk about responding to discovery because that’s where careers get dented.
Responding isn’t hard because it’s complicated. It’s hard because it’s a high-wire act. You’re balancing what the client has, what they can reasonably gather, what you can object to, what you should object to, and what you absolutely should not say in writing because it will haunt you later.
A practical rhythm helps:
- Send requests to the client immediately. Give them runway.
- Calendar the due date and set internal reminders.
- Identify objections early and research the scope of those objections.
- Get on the phone with the client to map what exists, what doesn’t, and what’s going to be a fight.
- If delays are likely, seek extensions early.
- Set expectations: what you’ll produce, what you can object to, and what you can’t.
- Identify production issues: privilege, cost, timing, format.
- Avoid self-inflicted wounds. Don’t produce or admit something without thinking about how it affects the entire case.
Most discovery disasters are self-inflicted. They don’t happen because the other side is brilliant. They happen because someone panicked, rushed, over-produced, or made casual admissions that felt harmless at the time.
That’s also why e-discovery is its own battlefield.
A party losing on the merits will often seek leverage in the process: preservation failures, incomplete searches, inconsistent productions, and spoliation accusations. Discovery becomes a war on two fronts: the substantive one and the ESI one.
And in 2026, the universe of “discoverable” keeps expanding.
If you do personal injury work, understand this: the most important data may not be in medical records. It might be on someone’s wrist.
Smartwatch data can show steps, sleep, heart rate, oxygen levels, activity patterns, all the stuff that speaks to day-to-day functioning. A plaintiff alleging severe limitations while recording 12,000 steps a day creates a different conversation, whether it’s fair or not.
So if your case involves physical injury, ask early: what devices exist, what data lives on them, and how they are preserved?
And now we have the new frontier: AI.
Companies are using AI tools at work, creating a new category of “records”: prompts, outputs, logs, drafts, and decision-making trails. If you’re not thinking about AI interactions as potential discovery, you’re behind.
One practical warning I give clients (and frankly, young lawyers too): don’t dump confidential attorney-client communications or work product into public AI tools. You may be creating discoverable material and waiving protections in ways you didn’t intend. Use AI carefully, like an assistant, not a dumping ground.
Now, somewhere in this middle stretch, you’ll hit the inevitable: a discovery dispute.
Here’s my view: pick the right fights. But when you fight, fight to win.
If you’re going to take the judge’s time, don’t come in with mush. Come in with a hook: clear facts, clean meet-and-confer history, specific requests, specific deficiencies, and a proposed order. Make it easy for the court to rule for you. Don’t dance around. Close the doors on the other side’s excuses.
And one more habit that saves you when tempers rise: memorialize important conversations. Opposing counsel will “misremember.” Witnesses will “clarify.” Clients will swear they told you something they never told you.
Write memos of key calls. Keep a record. Your memory is not evidence. Your notes can become the spine of your argument when things go sideways.
That’s the middle: systems, discipline, controlled aggression, and an awareness that discovery is as human as it is legal.
The end: Discovery isn’t paperwork, it’s leverage
The end of discovery should not feel like relief. It should feel like an advantage.
If you conducted discovery the right way, you’re not emerging from it exhausted and confused. You’re emerging with:
- your themes supported by a record
- their themes weakened by admissions or gaps
- contradictions preserved
- key documents identified and authenticated
- deposition targets and sequencing that make sense
- leverage for motion practice or settlement
That’s what discovery is supposed to produce: leverage.
And leverage is what drives outcomes.
Because most cases don’t end with a verdict, they end with a decision made under pressure, a pressure you either created or failed to create.
If you plan eight moves, build your themes early, read their discovery like it reveals their strategy, use checklists to avoid unforced errors, treat e-discovery seriously, and keep discipline about what you produce and why you stop “doing discovery.”
You start using discovery.
And when you start using discovery, you stop hoping the case breaks your way at the end. You start shaping the end from the beginning.
That’s the point. That’s the job.
Discovery isn’t paperwork. Discovery is where you win.
Frank Ramos is a partner at Goldberg Segalla in Miami, where he practices commercial litigation, products, and catastrophic personal injury. You can follow him on LinkedIn, where he has about 80,000 followers.
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