Discovery in legal terms refers to the procedure through which I exchange information with the opposing party to gather more details about the case. Typically, this discovery process is categorized into two phases: 1) written discovery, and 2) depositions. These phases are governed by specific rules, including mandatory timelines, dos and don'ts, and various processes for acquiring additional information. If you're contemplating navigating this process alone, I would strongly advise reconsidering and seeking professional legal assistance.
Discovery might seem like a straightforward information exchange, but it can quickly turn into a minefield where a single misstep can cost you the case. This is due to strict regulations guiding the process. While this article is primarily geared towards discovery in personal injury cases, it's worth noting that the process may vary slightly for other types of legal cases.
The initial stage of the discovery process is the written discovery phase. This phase often involves interrogatories and requests for the production of documents. Once the opposing party receives a copy of the petition and summons, they'll typically file an answer to the petition and send discovery requests for you to answer. The moment they file a certificate of service, demonstrating they've sent you the propounded discovery, the countdown to your response deadline begins. Therefore, it's critical to finalize your objections, answers, and responses within the allocated timeframe.
Each state mandates different timelines for responding to an opposing party’s discovery. Some timelines are strictly enforced, while others offer some flexibility. To ensure compliance with these deadlines, I often check in with my clients periodically to gauge their progress with answering the discovery questions. As an attorney, I usually manage the objections, filtering out inappropriate questions based on your case specifics. But remember, even with an attorney, it's your responsibility to provide timely answers and responses to the discovery requests.
The written discovery phase can be tricky, and that's why I'm here to guide you through it. For instance, in most states, failing to timely answer requests for admission can result in them being automatically deemed "admitted," potentially leading to a motion for summary judgment or dismissal. These outcomes can prematurely end your case and cause irreversible damage after only a couple of hearings. Likewise, failing to cooperate with me or neglecting to communicate can lead to sanctions, financial penalties, or even case dismissal.
To prevent such consequences, I always ensure to promptly forward any interrogatories and requests for production to my clients as soon as I receive them. Doing this allows me to prepare objections while my clients work on their answers and responses. By the time clients send back their answers and responses, I usually have the objections filed and can finalize the discovery responses using any relevant documents or information I may have on hand.
When responding to discovery, honesty is crucial. Always try your best to answer the questions to the best of your ability, and if you genuinely don't know the answer to a question or lack the requested document, it's acceptable to answer "I don’t know" or "I don’t have anything responsive to this."
The second phase of the discovery process is the deposition stage. Here, you'll participate in a question-and-answer session under oath, subject to perjury penalties. In essence, the opposing counsel wants to clarify information about your case while evaluating your potential performance as a witness during the trial.
Depositions serve as an opportunity for the opposing attorney to fill in any information gaps after reviewing your written responses and any other pertinent documents. However, the timing of your deposition can vary depending on various factors. Sometimes, I may attempt to settle the case without the need for a deposition, particularly in cases where liability is clear, damages are high, and cost-efficiency is crucial.
If your deposition becomes necessary, the other attorney sets the timing, and several factors could delay this process. They might be overwhelmed with work at an understaffed firm, waiting for additional information from other sources, or awaiting authorization from an insurance company. As such, it's not unusual for the deposition process to take anywhere between six months to a year after you complete written discovery.
When the time comes for your deposition, I'll aim to meet with you beforehand to review the rules and procedures. While it's normal to feel nervous, following my advice should ease the process. I'll likely advise you not to interrupt the opposing attorney, give audible responses, use clear "yes" or "no" answers, and only answer the questions asked unless I object and instruct you not to respond.
Generally, the opposing attorney will follow a sequence of questioning about your background information, the occurrence details, property damage, injuries suffered, course of treatment, future treatment necessity, current impact of your injuries, and other related matters. I may also follow up with some clarifying questions.
In summary, the discovery process is a regulated exchange of information designed to help both parties prepare for the potential trial. Having a competent attorney like myself by your side can make this journey less daunting. Yes, the discovery process can be slow, but it is a necessary part of the legal journey, guiding us towards the trial—where your case is likely headed after discovery concludes.