Discovery is one of the most important phases in a personal injury lawsuit
If you’ve been inside a courthouse, then you’ve probably seen lawyers wheeling around Samsonite catalog cases or pushing folding carts stacked with cardboard boxes. You may have asked yourself: what is all that stuff?
Those cases and boxes contain some pleadings and case notes. But most of the contents represent evidence obtained from arguably the most important phase of a personal injury lawsuit: the discovery phase.
What is discovery?
The term “discovery” is used to describe the pre-trial process of exchanging information between parties to a lawsuit.
Discovery is a formal process that exists in both civil and criminal cases and, for the most part, takes place outside the courtroom.
What’s the purpose of discovery?
Discovery was designed to prevent a situation where one side doesn’t learn of the other side’s evidence or witnesses until the trial, at which point there’s no time to obtain responding evidence.
To put it simply, discovery levels the playing field by making all information relevant to the case available to both sides. The hope is that, when parties have access to the same information, the outcome of the case will be decided based on the merits of the case rather than which party has the most information.
Types of discovery
There are 4 basic methods of discovery:
- Interrogatories. Interrogatories consist of written questions that one party sends to another party to answer. Some states limit the number of questions that can be asked. These questions, if not objected to, must be answered fully under oath. If a party receives new information that changes one of their answers, they’re obligated to re-submit their answer with the new information.
- Requests for production. If a party requests a document (rather than an answer), it’s called a request for production. Common examples in personal injury cases include requests for medical records and photographs of vehicle damage. Most attorneys submit requests for production along with interrogatories and call the entire document “Interrogatories and Requests for Production.”
- Requests for admissions. Requests for admissions are when one party asks the other party to admit certain facts under oath. These are similar to interrogatories, but the recipient must simply “admit” or “deny” each question. For example, a plaintiff might ask a defendant to: “Admit that you entered the plaintiff’s property without permission.”
- Depositions. Depositions are opportunities for the parties to question each other and witnesses orally and under oath. Depositions take place in the presence of a court reporter who produces a written transcript of the testimony for all parties involved. The goal of most depositions is to extract information to help the deposing develop a trial strategy, support their legal argument, and obtain statements that can discredit trial testimony if that testimony varies from the testimony taken during the deposition.
Is everything discoverable?
In general, parties can obtain discovery regarding any matter relevant to the matter and not privileged.
This raises 2 questions:
- What is relevant?
- What is privileged?
To be relevant, a piece of evidence doesn’t have to be admissible in court. Rather, it must be “reasonably calculated to lead to the discovery of admissible evidence.” For example, maybe a party’s tax returns wouldn’t be admissible in a personal injury case (because they’re not relevant). But, so long as the tax returns contain information that could lead to another piece of evidence that is admissible, those tax returns are discoverable.
Discovery doesn’t extend to privileged information. The 4 most common privileges are:
- Attorney-client privilege. Confidential communications made by clients to their attorneys (and their staff) in the course of their professional relationship are privileged and need not be turned over to the other side.
- Work-product doctrine. Materials prepared by an attorney in preparation of litigation that contain their impressions, conclusions, opinions, or legal research (such as notes from client meetings) are privileged and therefore don’t need to be turned over to the other side.
- Marital privilege. In most states, confidential communications between spouses are privileged.
- Physician-patient privilege. Confidential communications from a patient to a physician made in the course of medical consultation or treatment are privileged in some states. However, this privilege is generally waived if the plaintiff files a personal injury lawsuit concerning the injuries discussed.
Do I need a lawyer?
You don’t need a lawyer to conduct discovery. However, if you participate in discovery, you must follow your state’s discovery rules. These rules explain what can be discovered and how it can be discovered. Unfortunately, these rules are incredibly complex and if you fail to follow them exactly, the other party will object to your requests.
What’s more, if a defendant objects to a valid discovery request, there’s a whole process that the plaintiff has to go through to get the discoverable information (including initiating a 26(i) conference and filing a motion to compel). As such, if you’re not represented by an attorney, a defendant may object to your valid requests in the hopes that you don’t have the knowledge or resources to compel them to answer the requests.