Our Orlando Injury Attorneys Explain Your Court Case Beginning to End
Part 3: What is Discovery?
The following is part three in our six-part series outlining a basic personal injury case from beginning to end. Previously we covered:
- Part 1: Meeting With an Attorney for the First Time: What You Can Expect?
- Part 2: Beginning the Lawsuit through Initial Court Papers
A steadfast principle in the American Legal System is that there should be as few surprises as possible throughout the course of a lawsuit and trial. The method by which surprises are minimized is through the discovery process.
Note: This material is provided for informational purposes only and should not be taken as formal legal advice.
Discovery means compulsory disclosure, at a party’s request, of information that relates to the litigation. The discovery process is the method of fact finding and investigation used by the parties and their lawyers during a lawsuit. Generally, this fact-finding does not begin until the commencement of a civil or criminal action.
Evidence Versus Discovery
The scope of what is discoverable is much broader than what is admissible at trial. The fact that information is revealed during the discovery process does not necessarily mean the Judge at trial will permit the presentation of that information to a Jury. Generally, information about the parties, witnesses and otherwise regarding the case may be revealed through discovery if:
- It is relevant to the case or could lead to admissible evidence; and
- It is not protected by a privilege (such as lawyer/client, or accountant/ client).
This is much different than what is admissible at trial. The scope of what is admissible at trial is much narrower. The evidence presented at a trial is governed by a Code of Evidence. The Code mandates that evidence must be relevant. It also lays out many other policy considerations concerning the reliability of evidence, all of which should be analyzed and met prior to the evidence being presented in Court.
Objections to discovery requests are very limited. If the information sought is relevant, could lead to admissible evidence, and is not protected by a privilege, the information is probably fair game during the discovery phase of your case. The only proper objection an attorney can make to a discovery request would be if the request was unfair, difficult to understand, or unreasonable.
Types of Discovery
There are four basic forms through which information is revealed through discovery:
1. Written Discovery
2. Production and Inspection
3. Examination of a Person’s Condition
We will discuss each in further detail.
- Written Discovery
Written Discovery refers to interrogatories and requests for admission. Interrogatories are questions asked by one party generally to the opposing party requesting responses concerning the facts and circumstances of the case.
There are three types of interrogatories: standard, form and special. Standard interrogatories are questions that have been approved by the Court, typically the Supreme Court in the jurisdiction. Form interrogatories are questions that are typically asked in any case. Special interrogatories ask specific questions concerning your particular case. Special interrogatory questions can be very general; for example, “Describe the events leading up to your car accident.” On the other hand the questions can be very specific, such as “Is it your position that the change in elevation from the curb to the sidewalk was an optical illusion which created an appearance of flatness, and that is why this condition was dangerous?”
When responding to these questions, it is important to make sure you are honest, complete, and responding only to the question that is asked. Your response should be in general terms. You do not want to paint yourself into a corner at the outset of your case with a response you give to an interrogatory. If the questions asked are not fair or are difficult to understand, your lawyer will help you decide when and where to object as well on what grounds to place the objection.
Requests for Admission are one party’s request that the opposing party admit or deny certain facts pertaining to the case. Requests for Admission carry severe penalties for not answering, answering falsely, or even answering late. Should a party not answer a requests for admission, the request may be deemed conclusively admitted. If admitted, the judge may allow that request to be read to a jury at trial.
- Production and Inspection
Production and inspection refers to gathering information through the turning over of documents, having the information available for inspection or allowing entry onto land for inspection. A party has a right to see most documents that arguably relate to the case. As cases become more complex and documents involved become more voluminous, courts are increasingly allowing access to computer files and CDs as part of document discovery. In some limited cases, courts have even allowed litigants to reconstruct deleted computer files in document discovery.
Sometimes, as a result of voluminous documents, parties may permit the other party to inspect the documents at a set time and place. Other times it may be necessary to enter onto the land of another to view the scene of an accident or for some other reason important to the case. The discovery process allows for entry onto the land of another to conduct this inspection.
- Examination of a Person’s Condition
Examination of a Person’s Condition refers to the compulsory examination of a party, usually the Plaintiff, by the opposing party. This examination is generally conducted when the physical or non-physical condition of a party is at issue in the case; for example, whether a person is injured or to what extent the injury effects a person’s life. An expert in a particular field, usually a particular area of medicine, will be hired by one party to examine the condition of the other party. Sometimes these examinations last fifteen minutes. Sometimes they last over an hour. Your attorney may consider being present at the examination or documenting it through a videographer or a court reporter.
If as a part of your case you are required to attend one of these examinations with a medical doctor or mental health specialist, there are a few things to remember:
- Do not fill out an initial patient questionnaire. These questionnaires inquire extensively into your medical history and about your physical condition. Since you will not be a treating patient with this expert, there is no need to fill out the initial paperwork. This will prevent inconsistencies in the paperwork from being used against you in your case.
- You will likely be required to give a brief medical history. However, you should not answer extensive questions regarding the issues and merits of your case other than to describe the impact, your injury and continuing problems. Your deposition is the proper time for you to be asked questions.
- Make sure to let the examiner know of each of your physical complaints. Do not assume that the examiner for this one-time examination has reviewed your medical records
Depositions refer to testimony of a witness developed through the attorneys’ questions, taken under oath and memorialized either by video, a typed transcription or both. Depositions can range in length from an hour, to several days, to a week or more. Attorneys often have different strategies for depositions.
There are three main reasons to take depositions:
- Lock in a witness’ testimony;
- Gather information from the witness; and
- See how the witness presents them self and handles questioning by an attorney.
Reason #3 may be the most important as a deposition is a great way for an attorney to try to determine how this witness will appear to a Judge or Jury. It is critical that you stay calm, cool and collected in order to make a good impression at your deposition. Do not get mad. Do not let the opposing attorney rattle you. Your attorney should extensively prepare you for your deposition. But generally, there are two things to remember:
- Never guess. The purpose of the deposition is to gather facts, not to speculate or guess as to what might have happened. Many times “I do not know” is the best answer to give at a deposition where otherwise your answer would be a guess.
- The other thing to remember is that it is human nature to want to explain things so that your listener understands you. However, this natural tendency can get you into trouble during a deposition. Often times the more you explain, the more you hang yourself. It is important that you only answer the question that is asked. It is the opposing attorney’s job to get the answers and ask a follow-up question if he or she wants additional information. Do not volunteer information.
Crucial Points of Discovery
There are some important things to remember about discovery:
- Remember – it is very likely that anything and everything can come out through the discovery process. It is important that you are honest with your attorney about the facts and documents that may come out through discovery. Your attorney can only do a proper job if you disclose everything.
- Discovery can be lengthy, expensive, intrusive and frustrating. You should weigh the consequences of opening your life up to the scrutiny of the discovery process prior to making a decision as to whether to begin a lawsuit.
- Be honest. Lying during the discovery process could lose your case. Any lies, even inadvertent inconsistencies, will surely be presented during your trial and used to attack your credibility in front of the jury. It is imperative that you are honest and that you do not guess.
By following the advice above and playing it smart through the discovery process, you may be able to minimize surprises during your case and prevent innocent inconsistencies from being used against you. For more information, contact our Orlando injury attorneys. By taking advantage of our credentials and history of success, you could receive compensation following a catastrophic injury caused by negligence. Our Orlando injury lawyers are ready to help. Call 1-800-235-7060 to schedule your free consultation today.