Discovery, as the word implies, is a process of finding out things. In litigation, prior to trial, both sides engage in the “discovery process”. The rationale of having discovery is to allow both sides to ascertain the strengths and weaknesses of both their case and the other side(s) case. This will aid the parties in resolving their cases short of trial, if at all possible. With the current budget crisis in Los Angeles County, 56 courtrooms have been closed. The remaining courtrooms are dong a valiant job of continuing to get cases out to trial. However, delays are inevitable and the time to trial is increasing. Parties are turning to other methods to resolve their maters short of trial: arbitration (both binding and non–binding), mediation and settlement. Before all of this occurs, pre-trial discovery is the norm in most cases. This article will focus on the most common devices used by attorneys in “discovery.”
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This is a method of parties obtaining documentary evidence regarding their cases. The attorneys representing the defendant in an automobile accident case will subpoena medical records of the physicians that treated the injured plaintiff. This process serves two goals: (1) to allow the defense to see the actual medical records, not just the medical reports that the doctors prepare. The actual clinical notes may provide evidence of who performed the treatment and/or examination of the injured plaintiff. Southern California is the fraud capital of the insurance world. Fraud is akin to ice cream. It can come in 31 flavors. Auto accident fraud can take the form of the accident never occurred, the people do not exist, the medical treatment never occurred or was performed by unlicensed individuals, the medical clinic is owned by non-doctors, etc. Subpoenas give the defense an opportunity to obtain evidence on these and other issues.
In addition, a custodian of records will attest that the records provided are indeed all of the records. This is of crucial importance if additional testimony is needed on various issues. Both sides can use the subpoena process to obtain evidence on a myriad of issues connected with their case. In a personal injury lawsuit, the injured parties’ entire medical history is not opened up. The defense may obtain medical evidence for the injured body part(s) only for a reasonable period of time (typically 10 years) prior to the accident. Battles may exist when dealing with these issues and lawyers may become involved in “discovery disputes”. The subpoena may be limited by agreement, or the court may order a different solution depending on the issue presented. The court may issue a “protective order” to modify or limit the subpoena, quash the subpoena or resolve the dispute in other ways.
These are questions that are served by both parties on the other side in a case. They seek information regarding background information of the person, medical treatment obtained, prior/subsequent accidents or injuries, loss of earnings, etc. The injured plaintiff will serve interrogatories on the defendant to ascertain what the defense claims. For example, the defense may claim that they are not liable, or that the plaintiff contributed to their injuries in some manner (comparative negligence). The defense may claim that other person(s) are responsible for the injuries, the medical treatment is excessive, or the charges are not reasonable and necessary.
Request for Production of Documents
This is a device where each side can ascertain what documents the other side has pertaining to various issues. For example, if an injured party lost time from work due to the accident, they may have a letter illustrating how much time lost there was. The defense will use the letter to potentially obtain the work records (see subpoena discussion), or may set the deposition of the person who signed the letter to confirm and/or challenge the accuracy of the amount claimed. Other documents may be produced regarding motor vehicle repair, medical expenses incurred, police reports, etc.
We have all seen depositions on television on the various lawyer shows. A deposition is a process where testimony is given under oath by the party being deposed. A deposition of the injured party in an auto accident case serves two purposes: (1) to find out the party has to say and (2) how the party says it. What kind of physical appearance does the party make? Do they make good eye contact with the questioner, do they stammer, what do they look like. Unfortunately, we live in a society where physical impressions make a world of difference. Better looking and sounding people may get better results from a jury.
The defense in a motor vehicle case, may want to have the plaintiff examined by a doctor of their own choosing if the injured person is alleging ongoing physical problems. The doctor is retained by the defense attorney (insurance company or self-insured entity) to provide opinion on the medical issues in the case. There may be a panoply of experts who can provide testimony on a variety of medical and related issues.
Request for Admissions
This is a device designed to limit issues in a trial. If there is no dispute on these admissions, then that issue is put to rest. If, there is a dispute, the party asking for the admission (propounding party) will want toe responding party to provide them with all facts, witnesses and documents that prevent the responding party from unconditionally admitting the request. The law favors admissions, and in the absence of compelling facts, will not allow a party to withdraw or amend their admissions. This is why great care needs to be taken both in preparing the admissions themselves and in responding to them.