The federal court system requires disclosure of all relevant facts and documents to the other side prior to trial, and virtually every state court system has adopted the same practice. This disclosure is accomplished through a methodical process called "discovery." Personal injury discovery takes three basic forms: written discovery, document production, and depositions.
Written Discovery: Interrogatories and Requests for Admission
Interrogatories are questions about your version of the facts and your claims. There are pre-printed "form" interrogatories and specific questions asked just for your case called "special" interrogatories. These questions can broad or specific. If the questions asked are not fair questions or are difficult to understand, your personal injury attorney will help you decide what you should object to.
Requests for admission are not often used, but can be a very powerful tool. They ask a party to admit or deny certain facts pertaining to the case, and they carry with them penalties for not answering, for answering falsely, or even answering late.
Document production is fairly self-explanatory. Any party has a right to see most documents that even arguably relate to a case. Particularly in more complex medical malpractice or product defect cases, the documents involved can be voluminous. Increasingly, courts are allowing access to computer files as part of document discovery. In cases where enough is at stake to justify it, courts have even allowed litigants to reconstruct deleted files (like e-mail), although that practice has not yet become common.
Depositions are the next step in discovery. They are statements made under oath, in response to questions from an attorney, while a court reporter makes a transcript of all that is said. They can last only an hour, up to week, or, rarely, even longer. There are two primary reasons for depositions. The first is to see what information the other side has; the second is to run a "practice trial," and see how witnesses will appear and conduct themselves before a judge or jury.
Your personal injury attorney will tell you how to act and answer at the deposition, but there are two general rules to remember. The first is never to guess the answer; the purpose of a deposition is to give facts, not speculation. In many cases, “I don’t know” is an acceptable answer. The second thing is that while you may want to explain your answer, so that your listener better understands you, you should not do this. Your job is only to answer the question that are asked.
Final Points About Discovery
Some final points to keep in mind about personal injury discovery:
- It is common that anything and everything comes out during discovery. This process can be especially trying during divorce cases, as emotions often run high in these situations.
- Honesty with your attorney is essential. Tell him or her everything. If you do not, protecting you becomes exponentially more difficult.
- Honesty during the discovery is also essential. Lying during the discovery and getting caught will significantly compromise your position.