Discovery in a Personal Injury Lawsuit: Often Difficult and Expensive but Always Necessary!

The ideal situation when making a claim for injuries and damages arising from a personal injury accident is settlement with the insurance company without extensive time and expense. Unfortunately, obtaining a settlement that both the injured party and the insurance adjuster feel is reasonable is often not possible prior to litigation. Typically the adjuster believes the claim worth far less than the injured party and if the claimant/injured party is unwilling to lower his or her settlement demand, a lawsuit is necessary.

With a lawsuit, many issues arise related to litigation. One issue that arises immediately that is time-consuming, expensive and often frustrating is discovery. Discovery is the process in litigation that allows each party to obtain information from the other party related claims and defenses. The insurance company will hire an attorney to represent its insured, the defendant, and that attorney will seek information from the plaintiff.

During discovery, the plaintiff and the defendant gather evidence and information about the facts of the case and the other party. Discovery helps both parties to build their case and determine what evidence to present at trial. Depending upon the circumstances surrounding the accident and the claim for damages made by the plaintiff, the defendant may want to gather information about the plaintiff‘s physical condition prior to the accident or interview any witnesses to the accident.

The plaintiff may want to learn information about the defendant‘s criminal or driving record and obtain a copy of the accident report. Discovery may also lead to resolution of the case after the attorneys have fully evaluated the claim, its value and the risks involved with proceeding to trial.

There are several methods of conducting discovery in a personal injury case. Your personal injury lawyer will explain to you the best methods for your particular case. Generally both parties submit to the other side a set of written questions, called interrogatories, that they must answer, called interrogatories, within the statutory period. Parties will also issue requests for production of documents. Depending upon the type of claims, these requests can be very extensive. Parties will typically at some point issue requests for admissions. These will be questions aimed at narrowly the scope of contested facts. The timing will depend upon the lawyer‘s approach and the circumstances of the case. For each type of discovery, the attorney will help to prepare the final responses to provide to the other party but the answers must come from the party since it is the party who will have the knowledge to answer the questions.

In addition, either party may ask the plaintiff, the defendant, or any potential witness to appear at a deposition. A deposition is an out of court proceeding but deposition testimony is admissible at trial. In a deposition, the party or witness will be asked question which must be answered under oath. The questions should be relevant to the issues in the case. However, this construed very broadly allowing the attorney great latitude to ask questions that “may lead to the discovery of admissible evidence.”

Testimony given at a deposition is under oath and transcribed by a court reporter who by the way are very expensive. Either party can issue a subpoena requesting a witness to appear for a deposition. A deposition is a helpful way to determine what a potential witness‘s testimony will include at trial. However, the party requesting the deposition must pay for all expenses including a witness fee for appearing at the deposition, mileage reimbursement to the witness and the court reporter‘s costs.

This all sounds pretty straightforward but it can growing very contentious and very expensive in a hurry. Discovery is typically the most contested, burdensome and expensive portion of any litigation. Many times much of the expense and burden can be avoided or at least minimize. Other times, it cannot which can lead to extraordinary levels of costs on both sides.


Share your thoughts