Discovery’s Role in Litigation

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 generally send Requests for Admissions to each other. They are generally limited to 30 requests and less 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 generally only three answers to a Request for Admission:

  1. Admit,
  2. Deny, or
  3. 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 drunken 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 youmust be very careful about what you say under oath.

 

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.

 

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. I have had to sit in depositions  when my clients had to discuss criminal convictions that they did not reveal in their interrogatories, and other such things like prior injuries. Occasionally, I will read through my clients discovery disclosures, and I will be shocked at what I read because it is entirely different from what the client told me in the beginning. Then I must have what I call a “frank discussion” with my client about how we handle that issue.

Discovery disclosures and testifying are very different ways 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 with every word they put down on paper. 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 put down everything they do 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 other 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.

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