Discovery

When a personal injury claim becomes a lawsuit there is a chance it will go to trial.  Before this happens, both parties—the plaintiff and the defendant—have a chance to gather evidence.  The formal process for this evidence gathering is called discovery.  Discovery means that you and your lawyers can request certain types of records or materials, in the hopes of discovering some important evidence.  In Georgia and the United States in general, discovery allows you (and the opposing legal team) to make very broad requests.  For example, in a medical malpractice case, you could ask for a one specific disciplinary record involving your doctor, or you could simply ask the hospital for all disciplinary records in his department over the past 10 years.  If there is a chance these records could contain relevant evidence, your request should be granted. 

Discovery requests are ultimately decided by the judge in your case.  If the judge affirms a request, the other party is required by law to comply with it.  They must give you the complete records requested without altering or destroying them, or they may face penalties. 

What kind of evidence is requested during discovery?

Records aren’t the only kind of evidence you can request.  In a personal injury case, there are several common types of requests:

• Requests for admissions involve asking the other party to answer a very specific question.  These statements are often carefully worded to force the person to admit something—often something that is inconsistent with their story.  For example, a request for admission in a car accident case may state, “Did you or did you not see that the light was red before you started to turn?”
• Interrogatories are also questions, but they are almost the exact opposite of an admission, because they are asked in open-ended form.  For example, in a drunk driving accident claim, an interrogatory might ask, “Exactly what evidence do you intend to use to show that you were sober at the time of the accident?”
• A request for production simply orders the other side to “produce” some specific document or material.  In the hospital example above, the request was for disciplinary records, but it could also be for (for example) emails, electronic records, or physical objects that might be relevant to the case. 
• Depositions are formal statements by witnesses collected in advance of the trial.  The witness must testify under oath, with representatives from both sides of the case present.  Normally the judge is not present for a deposition, but your lawyer can object to parts of it later if it is used in trial. 

How does discovery affect my case?

In many case the discovery process will help you (the plaintiff) in a personal injury claim, because your side is the one that has to prove your case.  However, there are ways that discovery can also harm you:

• Sometimes you (or the other side) may turn up evidence that weakens your position. In a whiplash claim, for example, your medical records might show that you’ve had previous neck pain, and the insurance company will view this as grounds to deny that whiplash is to blame.  A good lawyer will work with you to predict any weak spots in your case before they come up in the formal discovery process, allowing you to better prepare your case. 
• In some cases discovery can be expensive. Taking depositions, reading through boxes of documents, and storing physical evidence all cost money.  Fortunately, discovery is relatively minimal in most personal injury cases.  Your lawyer can predict how much work your case will involve and tell you upfront whether it will be economical to proceed. 

Discovery is just the first stage of your case.  But it’s important.  The information you assemble during discovery will decide how strong your case is in the courtroom.  Often, simply assembling good evidence in discovery is enough to force the other site to settle your claim.  If you can show them that you have strong, compelling evidence, they will not want to risk going before a judge and jury.  It’s not uncommon for an insurance company to fight tooth and nail at the beginning of a case, only to cave in after discovery and offer you the money you need. 

Have you been injured? John Foy & Associates offers a free consultation with some of the most experienced and respected personal injury lawyers in Georgia.  Fill out the form to your right or call us at 404-400-4000 to get your FREE consultation today.