What Is The Discovery Process In A Personal Injury Case?
The discovery process is how we find out very specific details and information about a case. Usually, we conduct discovery after we receive what’s called a responsive pleading, which can be in an answer to our complaint or a motion to dismiss (most often, it is an answer). The discovery comes in the form of interrogatories (i.e. written questions), requests for production of documents that we want to examine (e.g. handbooks, employee policies, memos from companies), and access to property of the defendant. For example, if there was a premises liability accident on someone else’s property, we could take measurements and capture photographs of the scene, as well as review a product or see copies of surveillance tapes.
Discovery goes both ways, which means the defense can submit discovery requests to us. We work with our clients on answering written discovery propounded by the defense, and provide the defense with the requested documents and evidence (e.g. medical records, medical bills, photographs) so that they have a full and fair understanding of the issues in the case.
We can also make requests for admissions, meaning we would ask the defense to either admit or deny certain factual allegations (e.g. admit that the driver was wearing his seatbelt on the day of the crash). This works to narrow down the issues to only those that are disputed. If the defense doesn’t dispute that my client had a seatbelt on and we don’t either, then we don’t need to worry about litigating that; we can just agree on those issues. Requests for admissions are an important form of written discovery.
In terms of sequence, written discovery typically comes first. Once our requests for production and admissions are fulfilled, we start to build a small foundation of the defense’s position, because that’s really the point of discovery—to get the defense locked into a position. If the defense detours from the position that they’ve been locked into, then we can attack their credibility, and in any jury trial, credibility is number one. If the plaintiff or defendant lies or deceives, then they are going to lose the case.
We’ve won cases because we locked defendants into certain positions from which they then backed away, or became wishy-washy about, which created the appearance of deceit. Attacking credibility and truthfulness in these cases is absolutely critical. A mentor once told me that jury trials are just really races to the truth.
What Is A Deposition In A Personal Injury Case, And When Is One Likely To Be Done?
‘Deposition’ is just another word for verbal questions. Typically, depositions involve the opposing attorney asking a witness questions in the presence of a court reporter. The purpose of taking a deposition is to force the deponent (i.e. the witness) to take a position one way or the other, and then hold them accountable and lock them into that position. The goal is to determine the facts of what happened, and gain a better understanding of the defense’s affirmative defenses, as well as the experience and feelings of their witnesses.
A deposition often involves testing the witness on whether or not they agree on commonly accepted “rules of the road,” such as that drivers must always look where they are going. Ultimately, the jurors are going to be asked to determine whether or not the defense violated the reasonable standard of care or acted reasonably under the circumstances. Since this is confusing, we break it down by saying that if the defendant violated a safety rule, then they were negligent. We create a list of safety rules or rules of the road, and throughout the deposition, ask whether or not the particular witness agrees that the rule is valid, and have them explain why it is important.
For example, in a reckless driving case, we might ask whether the driver agrees that as a general principle, drivers should pay attention to their surroundings. When the driver agrees to that principle, we will ask them why they agree with it. They might respond by saying, “We don’t want to needlessly endanger people.” At that point, part of our trial theme would be that the defendant violated a safety rule, agrees with the safety rule, and knows that violating it can cause injury to other people. Framing a case in this way makes it easier for jurors to understand whether the defendant acted reasonably given the context.
During depositions, we hear common objections, such as those regarding the form of the question or a privilege. In other words, the attorney cannot ask the witness a question that would violate attorney-client privilege. An example of such a question is, “What did you and your attorney talk about?”
Depositions are very important, and can also be taken of treating physicians and experts that testify on behalf of the plaintiff or defendant. It’s important to note that depositions for medical doctors can be very expensive; some doctors in South Florida charge up to $1,000 an hour for a deposition. However, by getting a deposition, we can be prepared for the other side’s argument and eliminate the possibility of surprises at trial. We don’t mind a fight—we just want a fair fight, and discovery helps keep things fair by allowing each side to fully understand the issues in the case.
For more information on Personal Injury In Florida, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (954) 546-7608 today.