No matter what kind of personal injury case you have, when you hire an attorney it’s their duty to gather evidence that will support your claim during what is called the “discovery” phase of a lawsuit. There are a few different tools that we use to help clients prove that there was negligence or some other damage, and the defendant owes compensation—here are some of the most common.
Discovery Tactics
The most common discovery tactics used by attorneys include:
Interrogatories – These are basic questions posed to parties involved in a lawsuit that usually pertain to gathering background information or figuring out who could be a potential witness in the case.
Personal Injury Deposition – These generally take place outside of a courtroom, when attorneys ask questions of a variety of people that may be involved in a case, including witnesses, parties involved in the lawsuit, and expert witnesses.
The personal injury deposition takes place under oath and is recorded for potential use later during pre-trial and trial activities.
Medical Records or Examinations – If someone is claiming physical or mental injury in a case, attorneys may require that he or she turn over medical records, or even have an examination performed by a medical professional chosen by the opposing side’s attorneys. Generally, this is used by the defense, but may also be employed by the plaintiff in some cases.
Subpoenas – Court orders that compel a person to turn over files, documents, or other records that might be relevant to the case. A subpoena may also give an attorney the right to enter private property if that is where an accident occurred.
Admissions – in many cases attorneys will ask the other party, under oath, to admit that certain things are factual and cannot be disputed. This saves time at trial by narrowing the things that they have to prove.
What is Discovered?
There are some limits to what can be discovered during this phase, but generally it allows attorneys to ask for information about anything that a potential witness might have seen or heard, things that someone said following an accident or other event related to the case. They can also ask for the identities of potential witnesses (including background information on witnesses), and documents that might be even remotely related to a case.
Even with so much information being fair game during discovery, there are some things that are protected. Conversations that are privileged—such as with clergy, medical professionals, or attorneys—are not discoverable, nor are conversations between a husband and wife. Many courts also try to preserve the privacy of third parties with respect to divulging information that is obviously not relevant to a case.
The discovery phase is a useful tool for attorneys of both sides to exchange information, and it is often the driving force to get both sides together to negotiate a fair settlement, or the driving force behind a successful trial when settlement negotiations fall short.
