The pretrial discovery process that lawyers refer to as “discovery” is a court-supervised evidence collection process. While some form of discovery is available in most civil and criminal cases, personal injury attorneys use it in specific ways.
The discovery process is an integral part of a personal injury lawsuit. It can also play a decisive role in settlement negotiations.
Discovery in the Context of a Personal Injury Claim
The most important benefit of the discovery process is the fact that the court supervises it. You cannot commence the discovery process until after you file a lawsuit.
This means that you can appeal to a judge to apply pressure to an uncooperative party—and they can do the same to you. You can always drop your lawsuit if you and the opposing party settle.
Following is a list of just a few of the many benefits of the discovery process:
- Fact-finding: Discovery can generate new evidence.
- Information sharing: Information sharing leads to the avoidance of “trial by ambush” – surprise evidence that arises only at trial.
- Case strategy: New information helps inform the ultimate case strategy.
- Witness credibility assessment: You might not know the credibility of a witness until the moment they testify. You don’t want this to happen at trial.
- Assessment of expert testimony: Expert witness testimony is a special category of testimony that demands special care.
The discovery process typically leads to settlement because by this time, each party knows what to expect at trial. These mutual expectations govern the terms of the settlement.
Components of the Discovery Process
The discovery process offers both sides of a dispute the following four legal weapons. They can be powerful if you wield them appropriately.
In a deposition, an attorney questions witnesses under oath but outside of court. The judge is typically not present, but a court reporter is.
Following are some examples of common deposition questions:
- Please state your full name, address, and occupation.
- Please describe the event in your own words.
- Can you describe your injuries?
- Have you ever suffered an injury that affected the same area of your body (your back, for example)?
- How long after the accident did you receive medical treatment?
Since the judge is not present, there is nobody to issue a ruling if your personal injury lawyer objects to a question asked by the other side’s lawyer. The court reporter can, however, note the objection for the record. Your lawyer might also instruct you not to answer a particular question.
Interrogatories are written questions that the receiving party must answer in writing within a set time limit (typically 30 days). All answers are under oath.
Following are some examples of common interrogatory questions:
- Please describe the events leading up to the accident.
- At the time of the accident, were you under the influence of any substances, such as drugs or alcohol? If so, please describe what substances you used, when you used them, and how much you used.
- Do you have any insurance policies that might cover this incident? If so, please provide the policy numbers and the names of the associated insurance companies.
- Do you know of any cameras that might have recorded the accident? If so, please provide details.
- Do you have any documentation or other written evidence related to this case? If so, please provide details. This particular interrogatory can pave the way for a future demand for production (see below).
Answering interrogatories can demand quite a bit of research.
Demands for Production
A demand for production is a demand for access to tangible evidence relating to the case.
Common demands include requests for:
- Medical records
- Police reports
- Insurance policies
- Witness statements
- Vehicle records (maintenance logs, for example)
The foregoing list is only the tip of the iceberg of possible demands for production. Note that it is generally no valid objection to a demand for production that the item is not admissible as evidence in court. You can demand a copy of a police report, for example, even though it is generally not admissible in court.
Requests for Admissions
A request for admission is a request by one party to the other party to admit or deny the truth of a statement.
Following are some typical examples of statements that one party might ask the other party to admit or deny:
- You were driving the car at the time of the accident.
- Law enforcement cited you for running a red light in relation to the accident.
- The floor where the plaintiff slipped was wet at the time of the accident.
- Your dog was not on a leash at the time of the dog bite.
One of the main purposes of requests for admissions is to reduce the number of facts that each party would have to prove if the claim went to trial. This can simplify the process for both parties.
You’ll Need a Personal Injury Attorney To Help With the Pretrial Discovery Process
In a best-case scenario, the discovery process can take a flimsy assertion and turn it into a well-founded personal injury claim. It’s not likely that your discovery process will be this successful if you try to handle it without a personal injury lawyer.