What Is “Pretrial Discovery” in a personal injury case?
If your auto accident claim or other personal injury insurance claim cannot be resolved in negotiation with the insurance company, you may have to file a lawsuit to recover the compensation that you are due.
Lawsuits proceed through prescribed steps or phases. The major phases are
• Pleadings
• Discovery
• Trial
This post describes the “Discovery” phase of your lawsuit. “Discovery”, sometimes also referred to as “Pretrial Discovery”, refers to the protocols recognized under the court rules in state and federal courts for the exchange of information and documents between the parties prior to trial in a civil lawsuit.
Trial by surprise, while making for great television drama, is generally frowned on by the courts in civil litigation these days. The purpose of discovery is to encourage parties to reach resolution of disputes on their own, without resort to a full trial by the court. The free flow of information between the parties to a lawsuit is intended to enable each side to better assess the case, including strengths and weaknesses of both sides, thereby promoting a more realistic view of likely outcomes that will lead to settlement. A second reason for discovery is that, if a trial is necessary, the discovery process will have enabled the parties to obtain and present all of the evidence that a jury should see and hear to better reach a fair verdict.
Under modern rules of discovery, there is generally a requirement for the fairly comprehensive exchange of relevant documents and information available to the parties in a lawsuit. Parties are generally required to share information as to the identity of witnesses, to share relevant documents, and to participate in the discovery process called for under the court rules.
There are some things which are protected from disclosure in the discovery process. For example, attorney-client communications are almost always privileged and not subject to discovery. The marital privilege shields communications between a husband and wife, and a physician-patient privilege protects the privacy of your medical treatment (unless medical treatment is an issue in the case), to name those most widely recognized.
The methods of discovery that are most widely used in civil cases are written interrogatories; requests for production of documents or items; depositions, which are examinations of a witness under oath before a court reporter; requests for admissions which seek to have a party admit certain facts in a case; and medical examination of a party in a case where a party’s medical condition may be at issue.
Discovery in a lawsuit generally proceeds under the supervision of the trial court pursuant to a court order that sets a trial date and establishes deadlines for the various types of discovery to be completed. The trial court also hears and settles disputes that may arise during the course of discovery. Finally, the trial court is prepared to issue orders requiring parties to comply with discovery requests or face sanctions that can include declaring a non-cooperative party to be the loser in the suit.
An experienced personal injury attorney is critical during this key phase of your lawsuit. Good representation during discovery will help insure that it is handled properly; that you have acquired all of the evidence available to bolster your case; and that the insurance company will not have been permitted to take unfair advantage of you or your witnesses in preparing its case for trial.
