People love to threatened to file lawsuits whenever they believe someone has wronged them. However, in my experience, people are not nearly as enthralled with lawsuits after they encounter what is called “discovery.”
What Is Discovery?
Discovery is the process of gathering evidence for trial. Each side gets to request evidence or information that might lead to evidence that would be admissible at trial. The Florida Rules of Civil Procedure has very broad discovery rules, and almost any type of information is discoverable. The information that either side seeks does not even have to be admissible at trial so long as that information might lead to admissible evidence.
There are several discovery tools. I will give you an overview of each discovery tool and how it is used.
I. Requests for Admissions
Both sides usually send Requests for Admissions to each other. They are limited to 30 requests without the court’s permission to send more unless the court grants more.
Something that a defendant typically asks a plaintiff to admit or deny in an automobile negligence lawsuit is “Admit that your vehicle had a fully operational seat belt.” The next question might be. “Admit that you were not wearing your vehicles fully operational seat-belt.” You can probably see how Requests for Admission might be used later on at trial.
Request for Admission not only help each side develop their cases, but they can also be used to generate attorneys fees if a party does not answer truthfully. In other words, if you claim you were wearing a seat belt, but later on it turns out that you were not, then the other side can asked the judge for its fees and costs because you were not truthful. Fees and costs can get very expensive.
There are only allowable three answers to a Request for Admission:
- Admit,
- Deny, or
- Without sufficient information to admit or deny at this time.
II. Requests for Production
Requests for Production allow a party to request documents and other tangible items from the opposing party. These are typically tax returns, medical records, correspondence between a party and somebody else who might be involved in the case, diagrams, maps, photographs, video recordings, audio recordings, and anything else that might be used at trial.
The Florida Rules of Civil Procedure even has a mechanism that I have used in the past to request inspect of a vehicle long it had been involved in a crash. I have requested other things in the past like vehicle repair estimates, cell phone records, GPS records, black-box data, and driver logs in commercial vehicle crashes.
Requests for Production can lead to a gold mine of admissible evidence. For example, requesting a drunk driver’s credit card receipts can tell you how much he had to drink prior to getting into a crash and how many bars he visited that night. GPS and black-box data can tell you how fast somebody was driving when the crash occurred. Requests for Production are one of my favorite discovery tools.
III. Interrogatories
Interrogatories are nothing more than questions that a party answers under oath. Some of the most common questions are whether somebody wears glasses or hearing aid, the names of the doctors that they have treated with, the parties prior crash history, and if the party had been using alcohol or drugs when the crash occurred.
Many attorneys send out the same interrogatory requests each time they file a lawsuit. I do not. I tried to tailor my interrogatory requests to the case as closely as possible. I sometimes do not serve interrogatories on a party until I receive my Requests for Production and Requests for Admission responses. I also rarely use all of my 30 interrogatory questions because I want to keep some in reserve just in case something new pops up about which I want to inquire.
IV. Depositions
Depositions or when a party testifies under oath before a notary public. The other side’s attorney can hold one day of 7 hours of questions, and if need be, the other side’s attorney can asked the judge for more time. Depositions are by no means fun. It is a very structured form of speaking and you must be very careful about what you say under oath.
I spend at least a half hour telling my clients how depositions operate and how to answer questions during a deposition–short but full, truthful answers are the key to a successful deposition.
Testifying is a very different way of communicating. When you speak with your friends, you may go off on tangents, decide that certain information simply is important so you will not discuss it, and you even be careless about the way that you describe things.. But in litigation that simply will not work. In litigation, the other side tries to make you out to be a liar, and the easiest way to do that is to use your own words against you. That is because everything in discovery can be used against you. It is not that you are a liar or deliberately shading the truth, but that is exactly how opposing counsel will try to use your discovery disclosures against you.
What I tell my clients to do is to be exceedingly careful about every word they utter under oath. I tell them to answer to the best of their recollections and to state that their answer is to the best of their recollections, but to fully testify to everything they do remember.
V. Court-Ordered Medical Examinations
While court ordered medical examinations are usually performed on plaintiffs, the court can order defendants to undergo court-ordered medical examinations. That usually occurs when the plaintiff alleges that a defendant ignored a medical condition, did not take his medications, or had some sort of physical infirmity or illness in which the driver and maybe even his employer knew was a dangerous condition. A court ordered medical examination serves many purposes, but usually, it is used against plaintiffs to attempt to show that the plaintiff does not have a permanent injury. It is a defense lawyer’s way of trying to show that the plaintiff is not entitled to pain and suffering damages because the plaintiff does not have a permanent injury. There are a lot of rules that govern court ordered medical examinations, and it would take an entirely new post to discuss them.
VI. Discovery is Hard Work
Reading this post may make you believe that discovery is not a big deal. I can tell you that it is always a big deal with clients. They think it is highly intrusive, they do not fully answer the questions that defendants ask them, they leave things out either accidentally or deliberately, and sometimes they simply do not remember things in their past that you would think anybody would remember.
Litigation is very tough indeed, and really, discovery is the toughest portion of all. I can teach my clients how to testify at trial. I can tell each them to answer the question the attorneys or judge asked them, and not the questions they wanted the attorneys or judge to ask them, and I can teach them to answer the question and then stop talking. But getting clients to fully answer discovery can be extremely difficult because clients do not understand, no matter how many times I tell them, how important discovery really is until the other side tries to use their discovery disclosures against them.
So what is discovery? It is a means of find evidence that hurts the other side’s case. Trust me when I say that opposing counsel has absolutely no interest in discovering evidence that helps your case. The entire purpose of discovery is to somehow hurt your case or help theirs.
I have had clients who have dropped their cases rather than engage in discovery. It can be that brutal. But if you handle it correctly and with utter honesty, then it can make your case long before you step into the courtroom.
I like discovery. It is pure legal chess. It is often the most satisfying portion of the case second only to winning.
That saying a helluva lot for a trial lawyer like me.