In personal injury claims, discovery is a way of gathering evidence to support a claim of civil liability. The ultimate purpose is to prevent either party from surprising the other party with new evidence at trial. In Texas, the Texas Rules of Civil Procedure govern the pretrial discovery process.
Discovery takes place after the plaintiff files their complaint to initiate the lawsuit but before trial. Most of the time, discovery ends in a negotiated settlement between the parties. Once in a while, however, the claim goes all the way to trial.
The Scope of Discovery
The scope of evidence you can demand during the discovery process is wider than the scope of evidence that a judge will allow you to admit at trial. Generally speaking, you can demand that the other party disclose any ‘non-privileged’ information that is both relevant and “calculated to lead to admissible evidence.”
Sanctions for Uncooperative Parties
If the other party unreasonably refuses to comply with your discovery requests, you can ask the court to sanction them by imposing fines or limitations on presenting evidence at trial. A defendant can ask the court to dismiss the other party’s claims for failure to cooperate.
These sanctions give the discovery process teeth. In fact, they neatly explain why so many parties file lawsuits to gain access to the discovery process.
If you complain about an uncooperative party, the court will not necessarily take your side. For example, the court may refuse to impose sanctions if you had demanded privileged information from the other party.
Furthermore, a judge might object to your sanctions request if your requests are too burdensome for the other party to comply with.
The Legal Tools That Discovery Makes Available
Discovery allows you to take advantage of the following legal tools to gain access to evidence that is in the possession of the other party. In some cases, you can even demand evidence that is in the possession of a third party, such as a bank.
A deposition is the under-oath, out-of-court questioning of a subpoenaed witness. Typically, the witness is hostile to the party that questions them. Depositions typically take place in a law office. The judge is not present, but both parties’ attorneys attend.
Examples of Deposition Questions
You might ask a witness to a dog bite about how the victim treated the dog immediately prior to the bite that generated the claim at issue. The purpose would be to rule out the possibility that the victim provoked the dog.
Expert Witness Testimony
An expert witness is someone whose expertise in a particular field allows them to testify about matters they have not personally witnessed. Lawyers can question expert witnesses at depositions.
You might ask a medical expert witness how long it typically takes a victim injured in the manner your client was to fully recover.
Interrogatories are written questions that one party submits to the other. To avoid burdensome discovery requests, you cannot normally submit more than 25 questions to the other side. Typically, the receiver has 30 days to respond.
Examples of Interrogatories
You might ask a driver involved in a car accident, “Please describe in detail the weather conditions at the time of the accident.” You might ask the defendant doctor in a medical malpractice case, “Please list all the medical procedures you performed on the plaintiff.”
Requests for Production of Physical Evidence
“Physical evidence” means physical objects or legal documents, such as a gun, a waiver of liability, tax returns, or even the plaintiff’s body.
A defendant might, for example, seek to have a doctor they select perform an independent medical exam (IME) of a plaintiff claiming bodily injury.
Requests for Admissions
A request for admission is a request to the other side to admit a fact that you don’t want to go to the trouble of proving. Cooperation between the parties on admissions can greatly simplify a trial.
An example of a request for admission is, “Please admit that you were driving your car at the time of the accident.”
Return to the Negotiating Table, Hopefully With a Better Hand To Play
In a best-case scenario, the discovery process yields so much favorable evidence that the defendant immediately settles on your terms. In the worst-case scenario, discovery reveals that you never had a viable claim in the first place.
In an intermediate scenario, the evidence is still not decisive. Consequently, you return to the negotiating table and try to hammer out a settlement before the trial date.
Hire a Fort Worth Personal Injury Lawyer To Help With Your Pretrial Discovery
The pretrial discovery process is complex and tricky. With a seasoned Fort Worth personal injury lawyer, you’re more likely to enjoy the best-case scenario than to suffer the worst-case scenario. In fact, you should involve a lawyer as early in the process as possible.