Discovery is a pretrial investigation process in which each side of a car accident lawsuit attempts to learn about the other side’s claims. There are three major types of discovery: interrogatories, requests for production of documents, and depositions.
Interrogatories are written questions about the other party’s claims and defenses in the lawsuit that each side sends the other. Requests for production of documents are just what they sound like. Each party can send the other a list of requests for documents that support the other party’s claims and defenses in the lawsuit. Finally, depositions are out-of-court statements taken under oath in front of a court reporter. (Learn more about the discovery phase of a car accident lawsuit.)
In this article, we'll focus on the lawyer's role at the discovery phase of a car accident case.
It is critical for a party in a car accident lawsuit to give good, concise, accurate responses to discovery. One of a lawyer’s tasks is to help his/her client respond to discovery. If the client does not respond properly to discovery, the client’s claims at trial may be limited or even dismissed.
Interrogatories. The lawyer will typically send the client the other side’s car accident interrogatories with instructions to answer the questions as best he/she can. Although the interrogatories are addressed to the client, some of the questions are actually for the lawyer to answer. For example, the lawyer is the one who will prepare the answers to the interrogatory questions asking for the plaintiff’s expert witnesses and precise legal claims in the lawsuit. These types of questions have to be answered extremely precisely. Once again, failure to answer these questions in compliance with court rules can lead to dismissal of the client’s case.
The lawyer will then revise and edit the client’s answers to the interrogatories and document requests, with the client’s input and assistance. Answering the interrogatories is a joint effort between lawyer and client. The answers are a formal legal document that binds the client to a position in your lawsuit. It is therefore critical for the client and lawyer to work together to make sure that they get the answers right.
Document Requests. The lawyer usually reviews the list of requests with the client and advises the client, in lay language, exactly what documents the client must produce. The lawyer’s ability to translate legalese into lay language is one of the lawyer’s more important roles in responding to discovery because discovery is often written in difficult to understand legal language.
Depositions. The plaintiff’s deposition can often be the most important part of the discovery process. This is because it is generally the insurance company’s first and only opportunity to take a look at the plaintiff and really find out how the plaintiff performs under the pressure of answering questions under oath with other people in the room staring at him/her. If a plaintiff performs poorly at his/her deposition, the value of his/her case may be significantly reduced.
A good lawyer understands the significance of a deposition in a car accident case and will spend as long as takes to properly prepare the plaintiff for his/her deposition. If the plaintiff gets it in an hour, then that is all the preparation that is needed. But if it takes meeting the plaintiff every other day for two weeks to get the plaintiff properly prepared for deposition, then a good lawyer will do that with enthusiasm.
When preparing for a deposition, the plaintiff should feel free to ask the lawyer as many questions as he/she needs to in order to feel comfortable for the deposition. A deposition is certainly an unnatural experience, and the more preparation, the better. If the plaintiff is uncomfortable at the deposition, it will affect the plaintiff’s performance and possibly affect the value of the case.
Another discovery task that the lawyer performs is the preparation of discovery to the opposing party. The lawyer must make sure that the proper discovery is sent to the defendant and must make sure that the defendant responds to the plaintiff’s discovery requests appropriately and within the time limits.
If the defendant does not respond properly, the lawyer must file a motion with the court to force the defendant to respond. This is one of the lawyer’s key functions. It is almost impossible for an unrepresented litigant to do this properly. As a general rule, lawyers will take advantage of unrepresented litigants in the discovery phase of the case.