Jason Stephens | May 13, 2021 | Personal Injury
Discovery is a step in the process before a personal injury trial. During discovery, both sides exchange information and evidence related to the lawsuit. There are several forms of discovery that a party can use to obtain information from the other party. That information can be used to formulate legal strategies for court.
Discovery is a part of all personal injury lawsuits, including car accidents, dog bites, premises liability, wrongful death, and product liability cases. If the parties have disputes about discovery, they can file motions with the court. The judge hears from both parties and issues an order to resolve the dispute.
When Does the Discovery Phase Begin?
The Texas Rules of Civil Procedure set the rules for the discovery process.
The discovery process begins after the defendant (the person responding to the lawsuit) files responsive pleadings. Responsive pleadings may include an answer to the complaint and a counterclaim. If the defendant files a counterclaim, the plaintiff has the opportunity to respond to the allegations in the counterclaim.
The initial pleadings can take up to a couple of months to complete and file. Therefore, the discovery phase may not begin until three or more months after the plaintiff initiates the lawsuit. In some cases, parties request and receive extensions to file the initial pleadings, which could further delay discovery.
Types of Discovery Used in a Personal Injury Lawsuit
There are several different types of discovery that the parties may use to obtain information.
The types of discovery used in personal injury cases include:
Interrogatories are written questions sent to the opposing party that must be answered under oath. The questions relate to the case and usually seek information about the basic facts of the case.
Requests for Admission
Requests for Admission are written statements sent to the opposing party. The opposing party must admit or deny each statement. The goal of the request for admissions is to narrow the issues that are in dispute.
Request for Production of Documents
Requests for Production ask the other party to provide copies of specific documents related to the case. The responses are submitted under oath. Documents that may be requested include medical records, wage statements, photographs, and other physical documents that could be presented as evidence at trial.
Requests for Disclosure
This discovery tool is outlined in the Texas Rules of Civil Procedure. Rule 194.2 contains the information that the parties must disclose relating to a claim. In a personal injury case, requests for disclosure would include how the party is calculating damages and the legal theories and factual bases of the party’s claims or defenses.
Depositions are another form of discovery used to gather information and evidence for a personal injury lawsuit. A deposition is where a party, through their attorney, asks witnesses oral questions under oath. A court reporter typically records everything that is said during the deposition.
Attorneys may depose opposing parties, witnesses, experts, and other individuals who may have information related to the case.
Subpoenas are a way to obtain evidence from witnesses and third parties. For example, if you suspect that a driver was texting at the time of the accident, the attorney might subpoena the records from the cell phone service provider.
Can Parties Object to Discovery Requests?
Yes, a party can object to a discovery request. There are several reasons why a party might object to discovery requests. The judge decides whether the objection is valid.
Likewise, if a party refuses to produce documents or respond to a discovery request, the requesting party can file a motion to compel. The judge may then order the other party to comply with the discovery requests.
Why is Discovery Important in a Personal Injury Case?
During the discovery process, both parties review the evidence the other party intends to present at trial. It assists the parties in preparing the case for trial. They can base their legal strategies on the strengths and weaknesses of each party’s evidence.
However, discovery serves another important function. It can aid in settlement negotiations.
For example, an insurance company representing a driver may review discovery materials and realize that the plaintiff has a strong case. It may believe that a jury might sympathize with the plaintiff. When you combine those two factors, the insurance company may be willing to settle the case for a fair amount.
There Are Limits on Discovery
Parties are limited in the information they can discover. A party cannot request information that is not relevant to the case. Moreover, it cannot ask for documents or information that is protected by the attorney-client privilege.
Your attorney handles the discovery requests. Your legal team may work with you to gather documents and information related to discovery requests. However, the bulk of the work is handled by the legal team.