The Discovery Process in Personal Injury Cases

Personal injury law follows the principle that there should be as few surprises as possible during a lawsuit. The federal court system requires both sides to share (disclose) all relevant facts and documents to the opposing side before trial. This idea applies in virtually every state.

Disclosure is accomplished through a methodical process called “discovery.” Different types of discovery and fact-finding occur in the early stages of a personal injury lawsuit.

Completing each legal step properly and strategically will protect your claim. A personal injury lawyer can help you throughout the legal process.

What Are the Stages of the Discovery Process?

The discovery phase in a personal injury case generally involves:

• Initial disclosures: Both sides share basic information about the case. They must share this information even if the other side didn’t request it. A litigation attorney can verify what you must disclose for your case.
• Interrogatories: The parties can ask each other questions and write answers about the case.
• Requests for admission: Parties can ask the opposing side to admit or deny certain facts of the case.
• Production of documents: Parties can request access to other relevant records and communications.
• Depositions: Parties may call on individuals to testify out of court about information related to the case.

Both sides participate in the discovery process. It is a pre-trial phase that helps the plaintiff and defendant prepare for litigation in court. 

Often, both parties continue to negotiate during this phase. Discovery can give each side a sense of the strength of their opponent’s position. If one side appears to have a strong claim or defense, the other side may be more willing to settle. If they reach a settlement, the case will not need to proceed in court. 

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 to the specific. An example of a broad question may ask, “What happened at the accident scene on April 26, 2022?” An example of a more specific question could ask,  “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, also known as 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, with a maximum of seven hours. 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

During the discovery process, keep the following in mind:

• It is very likely that anything and everything will come to light 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. Due to the rigorous legal procedures, it is likely that you will be caught if you are being 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.

What Is a Discovery Motion?

A motion in discovery is a formal request that a lawyer may file with the court to compel the other side to cooperate with the discovery process. This motion may be necessary when:

• The opposing party has failed to respond to a request during discovery (e.g., a transportation company won’t share the truck’s “black box” data)
• The filing lawyer believes the opposing party is withholding relevant information 

In an injury case, gathering evidence is essential. If the other side won’t share accurate and relevant information, speak to your attorney about the next steps. There are limitations on what each party can request. The role of a personal injury lawyer is to advocate for accident victims.

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 a personal injury attorney for a free case evaluation to learn more about the legal process.