When contemplating litigation in a personal injury matter, victims may hear attorneys or others talk about something called “discovery.” Because the topic is far-reaching and can significantly impact how a case is approached, it is wise for prospective plaintiffs to gain a comprehensive understanding of precisely what the term encompasses and what the process will require of them. In essence, “discovery” is a method by which all relevant facts surrounding a lawsuit and its participants are disclosed to each side before trial ever takes place. The overarching purpose is to prevent one or both parties from being surprised or caught off-guard as the suit proceeds. Broadly speaking, discovery is conducted in written form, via the production of important documents and through oral depositions taken during the pre-trial stage.
Discovery in Written Form
An important form of litigation discovery, written interrogatories are designed to secure each party's impression of the facts underlying the lawsuit and the damages being alleged. Some attorneys use canned or “form” interrogatories, while others will develop specific queries based on the details of the case at issue. It is important to note that it is permissible and sometimes advisable for the party subject to interrogatories to make objections to individual questions if they are unfair or worded in a confusing manner. Attorneys and clients will generally address each interrogatory separately and decide whether or not an objection is in order.
Another tool sometimes used in the written discovery phase is known as a request for admission. When such a request is made, a party will be asked to admit or alternatively deny particular factual propositions related to the case. Parties subject to a request for admission who fail to answer truthfully or who provide answers later than required may be hit by the court with significant penalties.
A deposition is, in essence, testimony made under oath in which an individual will be asked questions by an attorney for one of the parties to the lawsuit. Court reporters are present during depositions in order to make an official transcript of the proceedings and all answers provided therein. Depositions are often viewed as a useful method of learning what the opposing side thinks and believes about a case, of solidifying the other side's arguments regarding what happened and observing how witnesses are likely to comport themselves at the trial stage. Strategically speaking, depositions can prove extremely helpful, though they can sometimes be stressful events for litigants.
Anyone who is being deposed in a lawsuit should keep a few fundamental things in mind. The first one is that only factual information should be provided, and speculating about things is never wise. Also, it is perfectly acceptable for a deposition subject to reply that they simply do not know or do not remember in the event that a difficult question is posed. Finally, it is best not to volunteer information that was not sought by the questioner. The lawyer is charged with drawing out the information he or she seeks, and those being deposed should not make that job any easier.
Production of Documents
This may be the most straightforward element of the discovery process, as all parties to a lawsuit are entitled to review just about any type of document that could potentially be deemed relevant to the case at hand. In a personal injury matter, this could include past and present medical records, employment history, financial documentation and more. Furthermore, production in this category is not limited to paper items, as computer files, email records, social media postings and other types of data are regularly included in required document production processes.
Though not necessarily considered part of typical litigation discovery, if a party's physical health is a significant issue in a case, the opposing side may request a court order requiring a medical examination be performed by an independent, third-party physician. The doctor will complete a detailed report outlining all findings, diagnoses and test results yielded from the exam, all of which may be used in the course of the lawsuit.
Disputes Over Discovery Requests
It is not uncommon for discovery requests to form the basis of serious disagreement between opposing parties. There may be assertions that particular information sought is in fact irrelevant to the case, is overbroad in nature or is violative of an applicable privilege, whether attorney-client or doctor-patient. There may be allegations that a specific line of questioning is little more than harassment of the other side. When this occurs, and resolution proves elusive, it may be necessary for the court to step into the fray and make a final ruling on a motion to compel, or force, discovery.
What Clients Need to Keep in Mind
Personal injury victims have generally already been through a very traumatic event, and the litigation discovery process can make an already difficult time seem even worse. Discovery tends to be an extremely protracted, intrusive, sometimes even embarrassing process, but it is often a necessary evil if compensation and accountability is ultimately to be obtained. Plaintiffs need to realize that it is quite possible that details of their life they never thought would be relevant to their case will be exposed as part of their lawsuit and that they must forfeit their right to privacy in a very real way. Lastly, personal injury victims pursuing litigation must remember to be entirely honest at all times so that his or her attorney can develop the strongest case possible on their behalf. Dishonesty during the discovery process can lead to swift defeat, and is something which must be avoided at all costs.
Seasoned Guidance, Each Step of the Way
Having dedicated his legal practice to asserting the rights of personal injury victims, attorney Jeremy Rosenthal understands how trying the discovery process can be. Defense counsel and counsel for insurance carriers will go to great lengths to undermine a plaintiff's case, and that is why he will conscientiously assist clients through each fact-finding phase, ensuring that both sides of the story are accurately told.
If you have been harmed by the negligent acts or omissions of another party, you owe it to yourself and your family to seek aggressive legal representation. To discovery how the Law Firm of Jeremy Rosenthal can help you pursue the compensation to which you are entitled, contact us at 303.825.2223.