For many of my clients, legal procedures and even legal terms can seem like a foreign language spoken in a foreign land. That unfamiliarity can be daunting for them, and every step along the way to litigation, generally, is a new and intimidating experience. It doesn’t have to be that way.
Take, for example, the Discovery phase of litigation. Discovery gets the whole litigation ball rolling, and simply provides both your attorney and the defendant’s attorney with the opportunity to “review” all the facts of the case. That is, it is the point in the process where facts are confirmed, and, sometimes, new facts are uncovered that are central to your personal injury case. The information learned in the Discovery phase has the potential to radically change the strategy and/or direction of each opposing side.
How It All Starts
The first thing to happen during Discovery is the defendant’s attorney responds to your lawsuit. At this point, he or she serves a demand for a Bill of Particulars to your attorney which may include accident reports (in the case of an accident), medical records, and necessary authorizations. Plaintiff’s attorney then typically requests (or serves) a Notice of Discovery and Inspection to the opposing (defendant’s) attorney. This is just a formal way of getting both sides to share all existing information they may have on the case.
Of course, there are basic kinds of information that both sides will require. However, it is my job, as Plaintiff’s attorney, to go way beyond the obvious. For example, suppose my client was injured on a construction site. Typically, I would demand all medical reports, accident reports, witness identification, physician’s narratives, hospital records as well as any police reports. But, what if somewhere there were records of faulty equipment on that construction site? Further, what if the individual or company responsible already was aware of that faulty equipment and thus a potential accident? That is the kind of information that will not always present itself during Discovery, and the very reason your personal injury attorney needs to be more curious and more tenacious than the other side. A knowledgeable Plaintiff’s attorney must always do a thorough investigation in order to properly represent his or her client. Going beyond Discovery can sometimes mean the difference between a successful and an unsuccessful outcome.
After Discovery has been served, Plaintiff’s and Defendant’s attorneys sometimes may object to any demands for information on the grounds that it is irrelevant to prevent a legal “fishing expedition.” Other times, attorneys will ask for more time to respond to requests for more information. The court then sets a preliminary conference or case scheduling order where deadlines are set for the completion of document discovery, depositions and medical examinations.