Navigating the Discovery Process in a Personal Injury Lawsuit
For those of us unfortunate enough to find ourselves having to file a civil lawsuit to address the harm done to us by another, the process itself can, at times, feel daunting. Particularly for those who have never been through the process before. Accordingly, I wanted to offer a brief primer on what to expect once your attorney has filed a lawsuit on your behalf.
Once a lawsuit is successfully filed, the next phase litigants most often have to navigate on the road to trial is called the discovery process. The discovery phase of a lawsuit is designed to allow each side in a lawsuit to learn about the evidence, arguments, and positions the other side will take at trial in an effort to convince a jury of its side of a case. U.S. law disfavors “trial by ambush” in which the other side can surprise its opponent with evidence that no one had ever seen before, and so Courts take a “cards on the table” approach in terms of allowing litigants a number of different tools to learn what their opponents intend to show and say to a jury in support of their position before the parties show up for trial.
Chief amongst a litigant's discovery tools are the ability to serve written requests for documents and answers and the ability to question each side's witnesses. If you are in a position where you’ve had to file a lawsuit to seek justice for being wrongfully injured, you will most likely be required to participate in these discovery events. The written portion of the discovery process is known as Interrogatories (i.e. questions for an opponent to answer) and Requests for Production of Documents and Things. Oftentimes, written Interrogatories will ask you, as a litigant, to identify the witnesses you intend to call to trial, the documents you intend to introduce in support, the types of damages you’re seeking, and questions about your medical history and conditions (whether or not they are related to the injurious incident), among other information. The Requests will ask you to produce things like your medical records and bills, any photos of your injuries at the scene of the incident itself, and information about any health or other insurance that may have covered. Your bills, among other items. Most often, you will be in the best position to provide complete responses to these written requests and your attorney should work with you to do so.
The deposition is the other typical discovery device each side employs to learn about what their opponent’s key witnesses intend to say at trial. The deposition is the opportunity for each side’s lawyers to ask the other side’s witnesses questions, designed to learn what their testimony will be at trial, while that witness is under a sworn oath to tell the truth, the whole truth, and nothing but the truth. As the person that initiated the lawsuit, it is more likely than not that your deposition will be required at some point and you will need to sit before a court report, under oath, and answer questions from the other side’s lawyers about the subject incident, your injuries, your medical history, and other relevant topics. Again, your attorney can help you navigate this stage of the process when the time comes.
While there are other discovery tools available to be fully prepared for trial (including things like site inspections, medical examinations, and requests to admit certain facts), written discovery and depositions are the principal events that most often require the direct participation of the person bringing the lawsuit. But if you find yourself in that position, don’t fret too much, since your lawyer should be there to help guide you every step of the way. And just remember, discovery is very much a two-way street so you get to do the same things for the other side and their witnesses too.