The Discovery Process

The American legal system has processes and procedures that are to be followed in the course of a lawsuit. This includes a personal injury lawsuit. Since the late 1940’s the federal court system has required disclosure of all relevant facts and documents to the other side prior to a trial so there are no surprises, and virtually every state has followed its lead. This disclosure process called “Discovery” has three basic forms – written discovery, document production and depositions. Written Discovery includes Interrogatories and Requests for Admission. Interrogatories are questions requiring your version of the facts and of your claims. The questions can be in pre-printed form, or specific questions asked just for your case called “special” interrogatories. Questions can range from the broad (“What happened on December 1, 2001?”) to the specific (“Is it your position that the defendant was wearing sunglasses on December 1, 2001?”). If the questions asked, are not fair questions or are difficult to understand, your attorney will help you decide what to object to. Requests for Admissions are not often used but can be a very powerful tool. They ask a party to admit or deny certain facts pertaining to the case, and they carry with them penalties for not answering, for answering falsely or even answering late.

Document production is self-explanatory, meaning any party has a right to see most documents that even arguably relate to a case. Particularly, in more complex medical malpractice or product defect cases, the documents involved may be voluminous. Increasingly, more courts are allowing access to computer files as part of document discovery. In cases where enough is at stake to justify it courts have even allowed litigants to reconstruct deleted files for example, emails, although it is not too common yet.

Depositions are sworn statements when an individual answers questions from an attorney and a court reporter makes a transcript of all that is said in that deposition. They can range in length from an hour to a week or more depending on the case. Although attorneys have strategies for depositions, there are three reasons to do them. One is to lock an individual into their story, second, to see what the other side has, and three to do a practice trial, that is to see how a witness will appear and conduct themselves before a judge or a jury. Your attorney will tell you what they want from you if you are deposed but there are two general things to remember. First, never guess as the purpose of a deposition is to get the facts not to speculate as to what might have happened. Sometimes even saying “I do not know” is the correct answer. Second, it is human nature to want to explain things so your listener understands, but resist the impulse, as it may be misconstrued. It is your opponent’s job to get the answers and it is your job to answer the question asked not to offer additional information.

The things to keep in mind when in a deposition, it is very likely that anything and everything will come out at some point in the discover process. It is imperative that you are honest with your attorney about the facts and documents that may come out. They cannot do a good job if you do not disclose everything. Discover can be a lengthy, expensive, intrusive and frustrating process. Whether you want, your life opened to that kind of scrutiny should play a role in your decision whether or not to start a lawsuit. Lastly, be honest. Nothing will make you lose a case quicker than to lie in discover and being caught and it is likely that you will be caught if you are purposefully dishonest. Remember to disclose everything you know to your attorney to get the best results in your case.  Our experienced Tucson car accident attorneys and Tucson personal injury lawyers are on call 24/7 to answer your legal questions.