This article covers the discovery process in personal injury cases. While all states have rules and guidelines governing how discovery must be conducted between opposing parties, the purpose and benefits of the discovery process are substantially the same.
What Is The Discovery Process?
Discovery is part of the litigation process in which opposing sides exchange information and evidence to prepare their case for trial. Both parties usually complete their discovery before formal settlement conferences commence and, in most states, at least thirty days before trial.
What Are The Different Types of Discovery?
Discovery Tools Used In Personal Injury Litigation:
- Depositions
- Interrogatories
- Document Requests
- Request For Admissions
What Are Depositions?
Depositions Are Formal Judicial Proceedings
Depositions are often conducted in a lawyer’s office but are considered formal judicial proceedings. Under the rules of evidence, depositions proceedings have the same force and effect as giving testimony at trial before a judge and jury.
Depositions usually last between one and three hours. The process can last a day or more to complete in complex high-stake cases.
Are Depositions Commonly Used In Personal Injury Cases?
Yes. In personal injury cases, as in most civil cases, courts encourage lawyers to depose witnesses as early as possible in the litigation process, so they can be fully prepared to try their case as quickly and efficiently as possible.
What Are The Benefits Of Depositions?
Lawyers Highly Favor Depositions
For the reasons stated below, depositions are the most effective and widely used discovery methods lawyers use in preparing their cases for trial.
Benefits of Depositions Include:
- Avoids Trial By Ambush: Depositions lock down the witness’s sworn testimony so there are no surprises at trial.
- Facilitates Settlement: Since depositions allow the lawyers to know what the witnesses will say should the matter proceed to trial, both sides have a better sense of the case’s settlement value.
- Saves Valuable Court and Attorney Time: Having taken the witness depositions before trial, the lawyers know what to expect and can zero in on the crucial areas to examine the witnesses on at the time of trial.
What Is A Court Reporter?
Role of The Court Reporter
In most states, the official role of the court reporter is to administer the oath and record (usually by stenograph) the official proceeding, including all of the lawyer’s questions, witness answers, and objections of the lawyers.
What Happens In Depositions?
The court reporter begins the deposition by asking the lawyers for the record to state their names and whom they are representing at the deposition. The court reporter then formally swears in the witness. From then on, the witness will be testifying under penalty of perjury.
Can Depositions Damage A Witness’s Credibility?
Impeaching A Witness Through Deposition
Yes. Should the witness give testimony at trial that contradicts the testimony they gave at their sworn deposition, it can severely damage the witness’s credibility. In fact, a jury instruction specifically states that if the jury believes a witness was not truthful in one part of their testimony, you can infer they have been untruthful in other parts of their testimony.
Under cross-examination, a trial lawyer will exploit the fact that the witness changed their testimony to prove the witness has not been truthful with the jury and consequently should not be trusted. The trial attorney will even go as far as reading the deposition testimony of the witness to the jury and then ask the court’s reporter to read back the trial testimony of the witness to the jury.
Depositions, while usually conducted in a law office, have the same force and effect as sworn testimony given in a court of law before a judge and jury. This is why attorneys spend so much time preparing their witnesses for their deposition.
How Does A Lawyer Prepare A Witness For Deposition?
It is common practice if you are the deponent answering the questions in a deposition that your lawyer will have already met and fully prepared you for your deposition. Most personal injury lawyers believe that failing to prepare their clients for deposition is akin to committing legal malpractice.
What Type Of Deposition Advice Is Given To The Client?
Preparation includes advising on what the client can expect at the deposition. Your lawyer will likely begin by reviewing all of the essential facts in your case to refresh your memory of the critical events upon which you will be testifying at your deposition.
Things To Watch Out For:
Depositions can be tricky business, and being careless about how you answer questions can cause serious damage to your case. Therefore, your lawyer will spend considerable time preparing you to give a truthful but careful deposition.
Your lawyer will likely advise you to:
- Refrain from giving speculative answers.
- Try to answer with either a yes or a no.
- Never answer a question you do not clearly understand
- Never guess the answer to a question.
- Never try to guess what the lawyer is trying to ask you.
- Don’t rush to answer a question.
- Never volunteer additional information.
- Only answer what has been specifically asked of you. Nothing more.
- If you don’t understand a question, tell the lawyer you don’t understand the question.
What are Interrogatories?
Most states use written discovery. Interrogatories are fact-gathering questions sent by both parties, which, by law, the receiving party must answer under penalty of perjury. Interrogatories are usually sent to opposing counsel in the early stages of the litigation.
Sometimes written discovery calls for the responding party to admit or deny a fact at issue in the litigation. Most states require the responding party to provide their written responses within 30-45 days of being served with interrogatories.
Types of Interrogatories Asked Of Plaintiffs
The defendant seeks to discover all evidence that the plaintiff claims that support their damages and liability claims against the defendant, which might include:
- The identity and addresses of all witnesses
- Time and exact location of the accident
- Description of how the accident happened
- Description of injuries suffered
- Specific medical providers and treatment received
- Medical history and pre-existing conditions
- Insurance coverage
Types of Interrogatories Asked of Defendants:
The plaintiff will seek to discover all evidence and reasons why the defendant contends they are not responsible for the accident or the plaintiff’s resulting injuries. This class of interrogatories is called contention interrogatories.
The following examples are considered general interrogatories:
- Identity and address of the defendant
- Name and address of employer
- The identity and addresses of all witnesses
- Time and exact location of the accident
- Where was the defendant going and coming from when the accident occurred
- Description of how the accident happened
- Was the defendant working for a company when the accident occurred?
- What the defendant heard or saw just before and after the accident occurred
What Happens If Interrogatories Are Not Fully Answered?
Compelling Answers To Interrogatories
Unfortunately, the responding party often evades answering the interrogatories. Sometimes the responding party will object and claim that the interrogatory violates an established privilege, such as the attorney-client or work-product privilege, or that the question is so vague that the responding party is unable to answer the question.
Time Consuming and Expensive
When the responding party refuses to answer interrogatories, the asking party is forced to request the court order the party to answer them, which is time-consuming and expensive. Interrogatory answers are often used at trial to impeach a party’s credibility or jog the recollection of the party at the time of trial.
What Are Document Requests?
Documents of all types may be considered evidence in personal injury cases. Most states allow litigants to obtain copies of relevant documents to prepare their cases for trial.
What Types of Documents Might The Defense Request Of Me?
Mostly documents, photos, and statements relating to the accident and the general and economic damages suffered from the accident.
Types of Document Request Include:
- Hospital Medical Records and Bills
- Individual Doctor Records Bills
- Medication Bills
- Bills and Medical Equipment
- Copies of X-Rays
- Loss of Income Verification
- Photos of the accident scene and injuries sustained
- Police Reports
- Witness Statement
What Are Request For Admissions?
Request for Admissions is a powerful discovery tool in personal injury cases because it forces the opposing side to either admit or deny whether a fact is true or false.
Request for Admissions is also commonly used to authenticate documents at trial. If the responding party admits that documents are authentic, the opposing party will not need to prove the authenticity at the time of trial.
In some states, if the responding party fails to respond to a lawful request for admission within 30 days, the court, after a judicial hearing on the issue, may deem all objections waived and admit the statement as true.
Personal Injury Lawyers
If you have questions or require additional information about your specific legal rights and obligations, contact a verified Personal Injury Lawyer as soon as possible.
