Evidence for a court action takes a variety of forms. It can be physical evidence (something tangible and tactile), documentary evidence (a written statement or material such as discs, tapes, videos, and photographs), or oral evidence (the testimony of a witness). The gathering of evidence as part of your argument is critical. You must be able to prove the facts on which your case is based if you wish to win. Evidence is presented at various phases of the judicial proceeding. When the claim or defences are filed, some evidence will be produced. There will also be deadlines for submitting evidence prior to the start of a trial.
There are several ways to recover evidence if someone else has it. You can rely on the Administration of Justice (Scotland) Act 1972 if the action has not been filed. This permits you to approach the court for orders for the recovery of documents or other property before filing a lawsuit. To do so, the court must be satisfied that proceedings are likely to be filed and that the evidence sought will aid in the filing of the action. A list of documents or evidence (a specification of documents or a specification of property) is created and presented to the court. If the court believes you are entitled to the evidence, it will issue an order for its retrieval.
There are two major pathways. and the first procedure is an optional one. This is dependent on the person in possession of the evidence (known as a "haver") acknowledging that the court has ordered evidence production and willingly revealing the relevant evidence to you. This is entirely optional. If the haver does not cooperate, if you do not believe they will cooperate, or if there is an urgent need, the second option is to set a commission. This is a formal hearing at which the haver must appear with the evidence they have in order for it to be recovered. The procedure is handled by an experienced lawyer or solicitor (known as a commissioner) who ensures that the proof is produced. If a court order for the recovery of evidence is issued and you refuse to comply. Failure to do so may result in contempt of court.
You cannot recover evidence with the hope of having a case. This is referred to as fishing diligence. There are also specific categories of sensitive documents that cannot be recovered; this is dealt with through a procedure involving sealed envelopes and the judge. The two main types of secret papers are materials prepared by one party in anticipation of litigation and communications between lawyers and their clients. When it is in the national interest, the Crown may also claim public interest immunity in relation to the disclosure of specific records. Unless the person in possession of the document decides to renounce their privilege, there are no exceptions to the confidentiality requirements.
It is critical to gather evidence early in a case. The more thorough your initial research, the more likely your case will be formed on solid ground. Late discovery of evidence can result in trial delays, discharged trials, and financial liabilities. In the worst-case situation, evidence discovered too late may be excluded from the case.