PERSONAL INJURY LITIGATION: THE DISCOVERY PHASE

Your lawyer has just filed a personal injury lawsuit on your behalf. What exactly is going on? What can you expect?

The next few articles will provide an overview of the phases of litigating a case. By understanding a bit about the litigation process, hopefully you can get some perspective on the issues nearest and dearest to your heart, like: How long is this going to take? (Answer - Be patient, this could take years but maybe less); What do I have to do as part of this process? (Answer - Testify in response to written questions and at a deposition and maybe at a trial); What will the defense do to me? (Answer - Investigate you and your claims thoroughly, get all your medical and public records from the beginning of time and cross examine you on just about anything.)

Sound like fun? Probably not, but this is serious business. You are making a claim, and the defense will evaluate your claim methodically and avoid it altogether if they can. On the other hand, if the defense becomes convinced that you have a reasonable claim as the result of a significant injury caused by the defendant, and that a jury will likely award you some money at trial, the prospects for pre-trial resolution are good.

Back to the topic at hand. Your lawyer keeps talking about "discovery." What is he talking about? "Discovery" is a term used by the drafters of various codes of civil procedure to describe the process of exchanging information prior to trial. Back in the old days, say 50 years ago, formal procedures for discovery were not so readily available. Litigants did not typically know what the other side had in the way of evidence. Trials were frequently had with lots of surprises and uncertain results. Modern procedure allows the parties to learn a great deal about the other side's case prior to trial. This allows the parties to realistically evaluate what is apt to happen at a trial, thereby fostering pre-trial resolution of claims.

Discovery can take a number of forms. The most prevalent is written questions known as "interrogatories." As the plaintiff (the party who filed the lawsuit), you need to be completely forthcoming and diligent in responding to discovery requests. Trial lawyers have a saying: "If you lie, you die." This means that any lie about anything will ruin a personal injury claim - even a good one. Once you lie, all credibility is lost. So tell your lawyer everything pertinent, including things that are unflattering or embarassing. Like the DUI several years ago, or the prior medical problems you had with the part of your body for which you are now making a claim. Your lawyer can handle adverse facts if you tell him the facts, and things may not be as bad as you think. What lawyers cannot handle are facts that are unknown to them. Defense lawyers live for the day when they unveil in a jury trial bad facts that a plaintiff has lied about in the litigation process. To avoid this scenario, do the honorable thing and simply tell the truth.

Your lawyer may send you a draft of his proposed reponses to interrogatories, along with a one page document for you to sign called a verification. The verification indicates that you are swearing that the draft responses are true and correct. Be sure that the responses are true and correct - read them and make changes if necessary. Add pertinent material that you remember which has not been mentioned. You can also supplement interrogatory responses if you later remember something that should have been mentioned.

The same general rules apply to depositions. This is another discovery process where you go to your lawyer's office to answer questions posed by opposing counsel about your claim under oath. A court reporter will be present to type everything you say, producing a transcript within a few days. The deposition consists of cross examination which can go on for hours but not usually more than six. Cross examination consists of leading questions (Isn't it true that ...) that will be intrusive, accusatory and, at times, annoying. Stay calm and tell your story as accurately as you can.

Depositions are a watershed event. The other attorney evaluates the witness, his manner of testifying, his credibility or lack thereof, and the impression that the witness is apt to make on a jury. The attorney will typically communicate his thoughts about the witness in a report to his client (usually an insurer in the p.i. context) made shortly after the deposition. Your deposition testimony will be compared to your interrogatory responses, medical records and any other information that the defense lawyer can get his hands on. Everything needs to be consistent for the claim to proceed smoothly.

There are some other discovery procedures involving a claimant that may come into play but are less frequently used. Also bear in mind that your attorney will employ discovery procedures to get information from the defendant, so discovery is a two way street. For that reason, and thanks to professionalism, many opposing attorneys will try to be courteous to a claimant as you are ushered through this process. But don't mistake courtesy for friendliness. The process is adversarial, and your claim will be assailed at every opportunity.

Discovery also includes the process of getting testimony from non-party fact witnesses and "experts", a term which includes physicians. I'll discuss that more in an upcoming article.

Copyright 2004, Schulten Ward & Turner LLP. All rights reserved, For more information contact David L. Turner at 404.688.6800 or e-mail dlt@swtlaw.com.

DISCLAIMER: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR SPECIFIC ADVICE ABOUT YOUR SITUATION, CONTACT LEGAL COUNSEL OF YOUR CHOOSING.