Discovery is the process of collecting information from parties to a claim on their respective claims and defenses. Discovery occurs both informally and formally. Both formal and informal discovery can be challenging and expensive. However, both are typically necessary in a personal injury claim.
Informal discovery is simply the investigation of claims and possible defenses on both sides prior to the filing of a lawsuit. This may involve extensive interviews of the client, going to and photographing the scene of the accident, reviewing accident histories related to the parties and/or the location, research on products, research on companies and other parties, reviewing medical records, speaking with witnesses, collecting documents and many other forms of investigation. Informal discovery starts early and is frequently conducted in order to evaluate a claim and/or defenses to the claims. It is also used to prepare for the filing of a lawsuit. Though much informal discovery occurs prior to litigation, throughout litigation as well. Once litigation commences, there are significantly greater barriers and restrictions on informal discovery.
Formal discovery takes place after litigation has commenced. This involves the formal request for discovery (information and documents) through the courts by way of the rules of civil procedure. Formal discovery comes in the form of request for interrogatories (questions to the parties), request for production of documents (request for documents in support or defense of claims), requests for admissions (questions directed at narrowing the scope of contested issues the answers to which are binding on the admitting party), and depositions (out of court questioning by an attorney in the presence of a court reporter and under oath which may be introduced at trial).
Informal discovery will often frame the course of formal discovery The information gathered through informal discovery will often dictate the strategy and scope of requests for interrogatories, request for production, request for admissions, and depositions. The means of discovery are highly interrelated. The strategy, timing and scope of each depend on the philosophy or approach of the attorney as well as the circumstances of each case.
Discovery is the most important aspect of any personal injury claim from beginning to end. Informal discovery will often determine whether an attorney even accepts a case. Once past this threshold, informal discovery is helpful in evaluating the strength and value of claims. It also generally guides formal discovery. Informal discovery can be very time-consuming and expensive in its own right. However, the costs and time in informal discovery pale in comparison to formal discovery which represents the great majority of time, costs and frustration of litigation.
Knowing this early on should help at least a little in preparing an injured party for what lies ahead in a personal injury case.