Fact-Finding: Understanding the Discovery Process

A hallmark of personal injury law is the principle that there should be as few surprises as possible in the course of a lawsuit. The federal court system requires disclosure of all relevant facts and documents to the other side prior to trial. Virtually every state has followed its lead.

Disclosure is accomplished through a methodical process called "discovery." Discovery takes three basic forms: written discovery, document production, and depositions. See FindLaw's Stages of a Personal Injury Case section for related articles and resources about fact-finding and the different types of discovery.

Written Discovery: Interrogatories and Requests for Admission

Interrogatories are written questions sent by one of the parties requiring answers under oath regarding your version of the facts and of your claims. They can be pre-printed "form" interrogatories (also known as judicial council forms) or specific questions asked just for your case called "special" interrogatories.

Questions can range from the broad (e.g. "What happened at the accident scene on April 26, 2022?") to the specific ("Is it your position that the defendant was wearing sunglasses just before the car accident at 2:30 p.m. on April 26, 2022?").

If the questions asked are not fair questions, your personal injury lawyer will help you decide what you should object to. Similarly, requests for admission can be a powerful discovery tool during a personal injury lawsuit. They ask a party to admit or deny certain facts about the personal injury claim. They carry penalties for not answering, for answering falsely, or even for answering late.

Production of Documents

Document production is a critical step in the litigation process. Any party has a right to access most documents that pertain to a case. In complex cases such as medical malpractice or product defect litigation, the documents in question, including medical records, bills, and records of treatment, can be vast and varied.

In today's digital age, electronic document discovery, or e-discovery, has become the norm rather than the exception. Courts regularly grant access to:

• Computer files
• Email exchanges
• Digital records
• Cloud-based documents

One aspect of e-discovery that has become increasingly routine is the reconstruction of deleted files, such as emails. Given the widespread use of digital communication in professional settings, this practice is often necessary to secure comprehensive evidence.

Parties to litigation may also hire expert witnesses to assist with these technologically intensive discovery processes. These experts play a key role in navigating the digital landscape, helping to locate, preserve, and analyze electronic evidence in an ethically sound and legally compliant manner.

Depositions

Depositions are sworn out-of-court testimony in which a person answers questions from an attorney. A court reporter will make a transcript of all that is said.

While depositions can vary in length depending on the complexity of the case, the Federal Rules of Civil Procedure generally limit depositions to one day of seven hours. However, in certain circumstances where more time is necessary, parties can seek permission from the court to extend the duration of a deposition beyond this limit.

Although all experienced attorneys have their own strategies for depositions, there are basically three reasons to do them:

• To lock people into their stories
• To see what information and evidence the other side has
• To do a "practice trial," that is, to see how a witness will appear and conduct themselves before a judge or jury

Your attorney will tell you what they want from you if you are deposed. There are two general things to remember:

• Never guess: The purpose of a deposition is to give facts, not to speculate as to what might have happened. Even if it makes you self-conscious to say it, sometimes "I don't know" is the right answer.
• Keep it simple: It is human nature to want to explain things, but you should resist the impulse. It is your opponent's job to get the answers. Your goal is to answer only the question asked as concisely as possible, not to offer additional information.

Things To Remember About Discovery Requests

• It is very likely that anything and everything will come out at some point in the discovery process. This applies whether through depositions, requests for production, or subpoenas served upon third parties.
• Be honest with your attorney about the relevant information and documents that may come out during the discovery phase. They can't do their best job if you don't disclose everything. Furthermore, unexpected surprises can damage your case.
• Nothing will hurt your case more than lying in responses to discovery, including requests for production, and getting caught. And it is likely that you will get caught if you are purposefully dishonest.

Also, be mindful of the statute of limitations for your specific case. It is the deadline for starting a lawsuit, and if you miss it, you may lose your opportunity to seek legal remedies. Your attorney can provide guidance on these timelines.

Get Legal Advice About the Discovery Process From a Personal Injury Attorney

The discovery process should never be taken lightly. The opposing party will do everything it can to challenge your story. They will poke holes in your narrative, or even discredit your character. As an injury victim shouldn't you also have representation at your side when being deposed or when you are soliciting documents?

Consider meeting with an injury attorney for a free case evaluation to learn more about the legal process.