The attorneys at Casey & Devoti recently published a Step-By-Step Guide to Making a Personal Injury Claim. This is the seventh of ten posts in the series, which will highlight the various steps throughout the personal injury claim process. We hope you find the level of detail informative. If you would like a copy of the complete step-by-step guide, email us at firstname.lastname@example.org.
Step #7 – Discovery
You sued the person that caused you injury. Most folks dread the thought of filing suit. A lawsuit is a public proceeding. Public records are created. Many individuals hate the idea of asking others for help, much less speaking to people they don’t know about their problems. The act of bringing a suit opens your life for examination and criticism through the discovery process.
Discovery is a necessary part of all litigation. Discovery entails that stage of the suit in which each party takes the opportunity to learn the others’ respective positions. During discovery each party attempts to learn as much as possible about their adversary’s allegations, their defenses and responses to those allegations, the basis for their positions, the identity of witnesses known to them, and documents and things that will be used at trial should the case proceed to that stage.
In sum, the purpose of discovery is to gather information to remove any surprise when the case is tried to either a judge or jury.
Discovery in most cases begins with each party sending to the other basic requests for information. These requests come in two forms: written questions, called “interrogatories”, and demands to produce material things, called “requests for production”. Typically, these initial requests are very basic and not personal to the particular case. In fact, in Missouri, many circuits require the parties serve “form” questions before sending interrogatories specific to the matter at hand. In these cases, the questions are “court approved”, meaning that they must be answered.
Counsel has several options to learn more specific information once this basic discovery is answered. Depending upon the circumstances, counsel may request the opportunity to formally visit the scene of the harm to both observe the scene as well as take measurements and photograph it and those things involved in the occurrence.
In an injury case, the parties always trade medical records and related itemized billing statements. Medical records are those documents that describe the care and treatment provided to the victim following her injury. In Missouri, the defendant has a right to obtain records that describe care provided to the plaintiff for those injuries she claims in the case. The defendant may also get records describing care provided to the plaintiff before the occurrence that deal with illness, injury or disease to the body parts she claims were harmed by the defendant.
In the usual case, counsel will also depose all parties and witnesses to those issues at dispute in the case – whether those issues arise from arguments about liability and fault or the plaintiff’s injury. A “deposition” is a statement taken under oath. During the deposition, one or more lawyers ask questions of the person being deposed, called the “deponent”, while the deponent answers questions. The parties retain the services of a court reporter to memorialize the conversation; the proceeding starts with the reporter placing the deponent under oath. Sometimes, the deposition is recorded so that a video record of the conversation exists. The video may be used for various reasons later in the case, including being played at trial should the deponent not be available to testify live.
In most cases, every party’s lawyer attends each deposition as each lawyer has a right to ask questions of every witness. In addition to be an opportunity to learn what the deponent “knows and doesn’t know”, the deposition also gives counsel the chance to observe the deponent’s demeanor and body language.
Prior to your deposition, your lawyer will prepare you. Your lawyer will provide you more detailed information about the process and review your memory of those matters at issue in the case and disputed by the other party.