In a personal injury case, the discovery process is an essential tool for creating a better understanding of the circumstances surrounding the subject of your lawsuit. Following your initial consultation with your personal injury attorney, the formal discovery stage of your case will begin.
As part of our ongoing Legal Education Series, our 6-part series titled: Understanding the Steps Involved In a Personal Injury Case, explains the stages of a personal injury case from start to finish. We are pleased to present Part 2: The 4 Steps Involved In Discovery For A Personal Injury Case
What Is Discovery?
Discovery can be understood simply as the exchange of information between the parties in the lawsuit, including the exchange of evidence, witnesses and facts about the case. Discovery enables everyone involved to know the facts and information about the case. Discovery may be completed before settlement negotiations occur and certainly before a trial beings.
Discovery consists of four key actions: interrogatories, requests for production, requests for admission and depositions.
Let’s explore each of these in more detail.
Witness Disclosures: Establishing the Foundation of the Case
During the discovery phase, both parties must exchange certain required information. This step ensures transparency and helps each side understand the scope of the case.
Key Elements of Initial Disclosures:
- Identities of Individuals with Relevant Information: This includes eyewitnesses, treating physicians, law enforcement officers, and other individuals who can testify about the accident and injuries.
- Insurance Policies: The defendant must disclose any insurance coverage that may apply to the claim.
- List of Claimed Damages: The plaintiff must outline the financial losses suffered, including medical expenses, lost wages, and property damage.
Example:
In a car accident case, the plaintiff’s attorney provides a list of treating doctors, medical bills, and estimates for vehicle repair costs. The defense, in turn, discloses the policy limits of their auto insurance coverage.
Interrogatories: Written Questions That Must Be Answered Under Oath
Interrogatories are written questions submitted by one party to the other, requiring detailed, sworn responses. They help attorneys gather specific facts early in the case. To put it simply, interrogatories are written questions one party will send the opposing party. Interrogatories include fact gathering questions relevant to the lawsuit, such as: the name and contact information of the involved parties or any witnesses; information on any insurance covering the incident; a description of injuries suffered and the medical treatment received for these injuries and the injured party’s medical history.
Common Interrogatory Topics:
- Accident Details: Where and how did the accident occur?
- Medical History: Have you suffered similar injuries before?
- Employment Information: Were you employed at the time of the accident? Did your injuries prevent you from working?
- Expert Witnesses: Will you call medical or accident reconstruction experts to testify?
Example:
In a slip-and-fall case, the plaintiff might ask:
- “Were there any prior complaints or reports of wet floors in your store before my fall?”
- “Do you have a written safety inspection protocol for preventing slip-and-fall hazards?”
If the defendant fails to provide complete answers, the plaintiff’s attorney can file a motion to compel more detailed responses.
Requests for Production of Documents: Gathering Tangible Evidence
Each party can formally request relevant documents, physical evidence, and records. These requests help establish liability and damages. A request for production is a written request asking the opposing attorney for tangible documents for the purposes of inspection. Depending on the type of lawsuit, the opposing party may request copies of medical records or insurance policies, photographs taken at the scene of the accident, receipts or records of repairs to property and other related documents. All parties are required to turn over relevant documents to the other side in response to a request for production from the opposing party. It is very common for these requests to accompany interrogatories.
Commonly Requested Documents:
- Medical Records & Bills: Prove the extent and cost of injuries.
- Employment Records: Establish lost wages and reduced earning capacity.
- Surveillance Footage: May show how the accident occurred.
- Police or Accident Reports: Provide third-party documentation of the incident.
Example:
In a trucking accident case, the plaintiff’s attorney may request:
- The truck driver’s logbooks to check if they exceeded legal driving limits.
- The truck’s maintenance records to see if mechanical failure contributed to the accident.
If the defendant refuses to provide key documents, the court may intervene to enforce compliance.
Requests for Admissions: Narrowing Down the Disputed Issues in a Personal Injury Case
Requests for Admissions (RFAs) are a powerful discovery tool used to streamline litigation by getting the opposing party to formally admit or deny key facts under oath. Unlike interrogatories or requests for production, which seek detailed information or documents, RFAs are designed to simplify what must be proven at trial by establishing undisputed facts.
By requiring the other party to acknowledge or dispute specific statements, RFAs help attorneys clarify the contested issues and avoid unnecessary arguments over basic facts in court. If a party denies an obvious or indisputable fact without a valid reason, they could face legal consequences, including financial penalties.
How Requests for Admissions Work
Format and Structure
An RFA is a written statement that one party (the requesting party) sends to the opposing party (the responding party). The responding party must reply by either:
- Admitting the statement is true
- Denying the statement
- Claiming a lack of knowledge to admit or deny (which must be justified with a reasonable inquiry)
- Objecting to the request (if it’s irrelevant, overly broad, or legally improper)
Deadlines and Legal Implications
- The responding party must reply within a court-specified deadline (often 30 days).
- If they fail to respond in time, the statements may be automatically deemed admitted and used as evidence at trial.
- If they deny a fact that is later proven true, they may have to pay the legal costs incurred to prove it.
Why Requests for Admissions Are Important
1. Establishing Liability
RFAs can force the opposing party to admit responsibility for an accident or injury, eliminating the need to prove certain elements at trial. This is particularly useful in cases where liability is clear but the defendant refuses to accept fault.
Example:
- “Admit that you ran the red light at the time of the accident.”
- “Admit that you failed to yield the right of way to the plaintiff’s vehicle.”
If the defendant admits to these statements, the plaintiff no longer needs to present extensive evidence proving the defendant’s negligence. This can significantly strengthen a settlement negotiation or reduce trial preparation time.
2. Confirming Awareness of Hazards
RFAs are commonly used in premises liability cases, such as slip-and-fall claims, to establish whether the property owner was aware of a dangerous condition before the accident occurred.
Example:
- “Admit that you were aware of the defective stairwell before the plaintiff’s fall.”
- “Admit that no ‘Wet Floor’ sign was placed near the spill where the plaintiff slipped.”
If a defendant admits they knew about the hazard but failed to fix it, this can be powerful evidence of negligence.
3. Verifying the Authenticity of Evidence
RFAs can be used to confirm the authenticity of documents, photos, videos, or other key evidence before trial, preventing unnecessary disputes later.
Example:
- “Admit that this surveillance footage accurately depicts the scene of the accident on June 10, 2023.”
- “Admit that this medical report from Dr. Smith is a true and accurate representation of the plaintiff’s injuries.”
If the opposing party denies an obvious fact without justification, they could later face sanctions from the court.
4. Strengthening Settlement Negotiations
Admissions can increase pressure on the opposing party to settle the case before trial. If the defense admits to key facts—such as liability for an accident or a history of safety violations—the plaintiff’s attorney can leverage this information to push for a favorable settlement.
Example:
A trucking company in a personal injury lawsuit might be asked:
- “Admit that the truck driver involved in the crash exceeded federal driving time limits on the day of the accident.”
If admitted, this could serve as a strong bargaining tool for securing a higher settlement.
Consequences of Denying a Request for Admission
If a party denies a fact that is later proven true at trial, they may face sanctions or monetary penalties for forcing the other side to prove an already established fact. Courts often take a dim view of parties who make bad-faith denials simply to delay proceedings.
Example of Consequences:
Suppose a business is sued for negligence after a customer is injured by a broken step. The plaintiff sends an RFA asking:
- “Admit that the step was broken at the time of the plaintiff’s fall.”
If the business denies it, but later, a maintenance record clearly shows that the step was broken and reported multiple times, the court may:
Penalize the business for obstructing discovery.
Require the business to pay the plaintiff’s legal costs related to proving the step was broken.
Depositions: Sworn Testimonies Given Before Trial
A deposition is a formal, recorded interview where witnesses provide sworn testimony outside of court. Attorneys from both sides ask questions, and a court reporter transcribes the responses. Depositions can reveal key facts, test credibility, and provide leverage for settlement discussions. Either party can request a deposition of the other parties, lay or expert witnesses in the lawsuit. Depositions can often be beneficial to capture an account of an accident or event before the involved parties forget the minor, often important, details. The transcript or video recording of a deposition may be used later on during a trial to corroborate or dispute testimony. While a deposition is not a formal hearing or trial, it is important for the person being deposed to answer each question truthfully.
Who Might Be Deposed?
- The Plaintiff: To verify injury claims and establish damages.
- The Defendant: To determine liability and potential negligence.
- Eyewitnesses: To confirm or dispute key aspects of the case.
- Medical Experts: To provide professional opinions on the extent of injuries.
Example:
A cyclist injured by a reckless driver may be asked in a deposition:
- “How often do you ride your bike on this road?”
- “Were you wearing a helmet at the time of the accident?”
If the cyclist contradicts earlier statements, it may weaken their credibility in court.
Insurance Medical Examination (IME): Assessing Injury Claims
When a plaintiff claims significant injuries, the defense may request an Independent Medical Examination (IME), or also known as an Insurance Medical Exam, by a doctor of their choice to verify the injury’s severity and cause. This is often used to challenge claims of permanent disability or high medical costs.
Key Considerations for IMEs:
- The defense selects the doctor, who may be biased toward minimizing the plaintiff’s injuries.
- The plaintiff’s attorney can challenge misleading IME findings.
- The IME report may be used to negotiate a lower settlement or dispute damages at trial.
Example:
A plaintiff with chronic back pain from a workplace fall undergoes an IME. The defense’s doctor claims the pain results from a pre-existing condition rather than the accident, which the plaintiff’s attorney must counter with their own medical expert.
Expert Witness Discovery: Strengthening the Case with Professional Testimony
Expert witnesses play a critical role in personal injury cases by providing specialized knowledge that supports or refutes claims of negligence, causation, and damages. Their testimony helps clarify complex issues, such as the extent of injuries, the mechanics of an accident, or the long-term financial consequences of an injury. Unlike fact witnesses, who can only testify about what they personally observed, expert witnesses offer professional opinions based on their expertise, making their insights valuable evidence in settlement negotiations and at trial.
How Expert Witness Discovery Works
During the discovery phase, both sides must identify and disclose any expert witnesses they plan to use. This process involves:
- Expert Reports – Experts submit written reports detailing their analysis, methodologies, and conclusions.
- Depositions of Experts – The opposing side deposes the expert to challenge their findings and credibility.
- Challenges to Expert Testimony – A party may file a motion to exclude an expert’s testimony if it lacks scientific validity (Daubert challenges).
Proper expert witness discovery allows attorneys to assess the strengths and weaknesses of an expert’s testimony, potentially using counter-experts to dispute findings.
Types of Expert Witnesses and Their Roles
1. Medical Experts: Establishing Injury Severity and Causation
Medical professionals provide objective assessments of a plaintiff’s injuries, helping to prove:
- The cause of the injury (e.g., accident vs. pre-existing condition).
- The severity and long-term impact of the injury.
- The necessity of future medical treatments and costs.
Example:
A plaintiff who suffered a traumatic brain injury (TBI) in a car accident relies on a neurologist’s expert testimony. The expert confirms that the TBI caused permanent cognitive impairments, justifying the claim for lifelong medical care and lost earning potential.
2. Accident Reconstruction Specialists: Proving Liability
These experts analyze accident scenes, vehicle damage, and physical evidence (such as skid marks and road conditions) to reconstruct what happened. Their findings often establish whether a defendant’s actions were negligent.
Example:
In a wrongful death case, an accident reconstructionist testifies that the pattern of skid marks and vehicle impact points prove the defendant was speeding and failed to brake before the collision.
3. Vocational experts: Calculating Financial Losses
Economic experts help quantify the monetary damages a plaintiff has suffered, including:
- Lost wages due to injury-related work absences.
- Future earning potential if the injury limits employment opportunities.
- Medical costs for long-term treatment or rehabilitation.
Example:
A 35-year-old construction worker suffers a spinal cord injury in a workplace accident. An vocational expert calculates that, based on their prior earnings and industry growth trends, the worker will lose $2.5 million in lifetime wages and benefits.
4. Engineers and Safety Experts: Identifying Hazardous Conditions
In product liability and premises liability cases, engineers analyze structural failures, defective products, or unsafe property conditions. Their reports help prove negligence in:
- Defective machinery injuries.
- Slip-and-fall accidents caused by poor building maintenance.
- Workplace accidents due to unsafe equipment.
Example:
A structural engineer testifies that a poorly maintained balcony collapsed due to code violations, proving the property owner’s negligence.
5. Mental Health Experts: Assessing Emotional and Psychological Impact
Personal injury victims may experience PTSD, anxiety, or depression, which can be compensable damages. Psychologists or psychiatrists testify about the mental and emotional impact of an accident, strengthening claims for pain and suffering damages.
Example1:
A mental health expert confirms that a sexual assault survivor developed PTSD, requiring years of therapy and limiting their ability to work or maintain relationships.
Example 2:
Someone is in a car crash, and the fear of driving again causes them to limit driving, avoid areas around the crash, or drive way below the posted limit. There are therapies for that which can put them back on the road again without that lurking fear.
The Power of Expert Witness Testimony in Personal Injury Cases
1. Bolstering Settlement Negotiations
Strong expert testimony can pressure the defense into settling rather than facing damaging testimony in court. If an expert’s analysis makes liability or damages indisputable, insurance companies are more likely to offer higher settlements.
2. Countering the Opposing Party’s Claims
If the defense presents an expert who downplays injuries, the plaintiff’s attorney can use rebuttal experts to discredit flawed medical opinions.
Example:
A defense-hired doctor claims a plaintiff’s back pain is due to aging, not the accident. The plaintiff’s medical expert refutes this, using MRI scans that show acute trauma rather than degenerative changes.
3. Strengthening Jury Persuasion
Juries may not understand complex medical, financial, or technical issues. Experts translate this information into clear, persuasive testimony, making them crucial in court cases.
Subpoenas: Obtaining Critical Third-Party Records
Subpoenas are powerful legal tools used in personal injury cases to obtain key evidence from third parties who are not directly involved in the lawsuit. This evidence can strengthen claims of negligence, prove damages, and validate witness testimony, making subpoenas essential to a thorough discovery process.
Unlike discovery requests directed at the opposing party, subpoenas force external entities—such as businesses, medical providers, or government agencies—to provide documents, records, or even witness testimony that may be crucial to the case.
Types of Subpoenas in Personal Injury Cases
There are two primary types of subpoenas used in personal injury litigation:
1. Subpoena Duces Tecum (Subpoena for Documents or Records)
This subpoena compels third parties to produce specific documents, records, or other tangible evidence relevant to the case.
Example: An attorney subpoenas a trucking company’s vehicle maintenance logs to determine if a commercial truck was improperly maintained before an accident.
2. Subpoena Ad Testificandum (Subpoena for Testimony)
This subpoena requires an individual to appear and provide testimony, either at a deposition or in court.
Example: A store manager is subpoenaed to testify about safety policies and previous slip-and-fall incidents at a retail location.
Commonly Subpoenaed Evidence in Personal Injury Cases
1. Cell Phone Records: Proving Distracted Driving
If distracted driving is suspected in a car accident, attorneys may subpoena cell phone records to show whether the driver was texting, making a call, or using an app at the time of the crash.
Example: A driver denies being distracted, but subpoenaed phone records reveal they sent a text message seconds before impact, proving negligence.
2. Surveillance Footage: Documenting the Incident
Security cameras often capture accidents as they happen, providing clear visual evidence that can support or disprove claims.
Example: A grocery store denies liability for a slip-and-fall, but subpoenaed surveillance footage shows an employee mopping the floor without placing warning signs, proving negligence.
3. Employment and Wage Records: Verifying Lost Income
If a plaintiff is seeking compensation for lost wages, attorneys may subpoena employment records, pay stubs, or HR records to prove the financial impact of their injuries.
Example: A factory worker claims they were unable to return to work after a severe hand injury. Subpoenaed payroll records prove they had no income for six months, strengthening the claim for lost wages.
4. Business Maintenance Logs: Exposing Negligence
Businesses must maintain records of safety inspections, equipment maintenance, and employee training. Subpoenaing these records can expose failures in safety protocols.
Example: A trucking company refuses to release its vehicle maintenance logs after a crash. A subpoena forces disclosure, revealing that the truck had overdue brake repairs, proving negligence.
What Happens If a Party Fails to Comply with a Subpoena?
When a third party ignores or refuses to comply with a subpoena, the court can enforce compliance through:
- A Motion to Compel – A judge orders the third party to produce the requested records.
- Contempt of Court Charges – The third party faces fines or penalties for failing to comply.
- Example: A bar refuses to provide security footage showing an assault on its premises. The plaintiff’s attorney files a motion to compel, and the court orders the footage to be turned over.
Discovery-Related Motions: Resolving Disputes and Ensuring Fair Evidence Exchange
The discovery process is intended to promote transparency between parties by requiring them to exchange all relevant evidence before trial. However, disputes often arise when one side refuses to comply with discovery requests, withholds crucial documents, or tries to limit the scope of evidence disclosure. When this happens, attorneys can file discovery-related motions to seek court intervention and ensure a fair process.
Key Types of Discovery Motions in Personal Injury Cases
1. Motion to Compel: Forcing the Opposing Side to Cooperate
A Motion to Compel is filed when the opposing party fails to provide requested evidence or refuses to answer deposition questions. This motion asks the judge to order compliance, ensuring that the necessary documents, records, or testimony are produced.
Common Reasons for a Motion to Compel:
- Failure to produce documents – A company refuses to turn over maintenance records for faulty equipment that caused an injury.
- Evasive or incomplete answers – A defendant provides vague or misleading responses in an attempt to avoid liability.
- Failure to appear for a deposition – A key witness ignores a subpoena and does not attend their scheduled deposition.
Example:
A construction worker is injured due to faulty scaffolding. The employer refuses to provide internal safety reports related to previous accidents. The plaintiff’s attorney files a Motion to Compel, arguing that these records prove a pattern of negligence and should be included in the case. The court grants the motion, forcing the employer to disclose the documents.
2. Motion for Protective Order: Shielding Sensitive or Irrelevant Information
A Motion for Protective Order is used to prevent the disclosure of certain information when one party believes a discovery request is:
- Overly broad – The request seeks information beyond the scope of the case.
- Unduly burdensome – Complying would require excessive time, effort, or cost.
- Highly confidential – The request involves sensitive personal, medical, or business information that should remain protected.
Common Scenarios for a Motion for Protective Order:
- Medical privacy concerns – A plaintiff seeks to protect unrelated medical history from being used against them.
- Trade secrets – A corporation being sued for a defective product does not want competitors to gain access to proprietary safety reports.
- Harassment through excessive discovery – One party bombards the other with excessive requests to delay proceedings.
Example:
A person sustains a serious injury at a hotel, which is a franchisee for a large chain of hotels across the world. The chain has a set of policies and procedures on how the local operator is to conduct almost every aspect of the business. These policies and procedures are generally only available only to hotel owners and their general managers. The franchisee is required, by contract, to keep this document confidential. This document is highly relevant to the injury sustained by the guest. Normally an agreement can be reached over the extent and scope of a confidentiality order, but sometimes, court involvement is necessary.
3. Motion to Quash: Blocking Unreasonable Subpoenas
A Motion to Quash asks the court to invalidate a subpoena if it is improper, overly broad, or issued in bad faith.
Reasons a Motion to Quash May Be Filed:
- The subpoena demands irrelevant or privileged information.
- The request places an undue burden on a third party.
- The subpoena was issued improperly or without legal authority.
Example:
A personal injury lawsuit involves a slip-and-fall at a retail store. The defense subpoenas the plaintiff’s therapist’s notes from 10 years ago, claiming it’s relevant to emotional distress. The plaintiff’s attorney files a Motion to Quash, arguing the request violates doctor-patient privilege and is irrelevant to the case. The court agrees and blocks the subpoena.
4. Motion for Sanctions: Penalizing Non-Compliance
If a party continues to ignore discovery obligations, the court may impose sanctions as a penalty. A Motion for Sanctions can request:
- Fines against the non-compliant party.
- Exclusion of evidence that was wrongfully withheld.
- A default judgment in favor of the compliant party.
Example:
A trucking company intentionally destroys driver logbooks that prove the driver exceeded legal driving hours before a crash. The plaintiff’s lawyer files a Motion for Sanctions, arguing this is spoliation of evidence. The judge penalizes the company by instructing the jury to assume the logs would have proven negligence.
Conclusion of Discovery and Pre-Trial Preparation: Turning Evidence into Strategy
The discovery process plays a crucial role in shaping the outcome of a personal injury case. Once all relevant documents, depositions, expert reports, and admissions have been exchanged, attorneys shift their focus to using this evidence to build the strongest possible case. What happens next can determine whether a case settles or proceeds to trial.
Key Steps After Discovery Ends
1. Settlement Negotiations: Using Evidence to Maximize Compensation
Many personal injury cases do not go to trial because both sides recognize the risks and costs involved. At the conclusion of discovery, attorneys evaluate the strength of the evidence to determine whether settlement is the best option.
How Attorneys Leverage Discovery in Settlement Talks:
- Deposition Testimony: If a defendant admits fault during questioning, their legal team may push for an out-of-court resolution to avoid an expensive trial.
- Medical Records & Expert Opinions: A plaintiff with clear medical evidence of permanent injuries may negotiate a higher settlement amount.
- Accident Reconstruction Reports: If a reconstruction expert proves the defendant was speeding, it increases liability pressure in negotiations.
Example:
A plaintiff sues a trucking company after a severe highway collision. During depositions, the truck driver admits he had been awake for 20 hours before the crash, violating federal regulations. The trucking company, recognizing the high risk of losing in court, offers a substantial settlement to avoid trial.
2. Pre-Trial Motions: Strengthening the Case by Controlling Evidence
Attorneys can file pre-trial motions to shape what evidence is allowed in court. These motions help eliminate unfair or misleading evidence that could hurt a client’s case.
Common Pre-Trial Motions:
- Motion in Limine: Requests the court to exclude certain evidence from trial.
- Motion for Summary Judgment: Argues that the facts clearly favor one side, requesting a ruling without a trial.
- Motion to Exclude Expert Testimony: Challenges an expert witness’s qualifications or reliability.
Example:
In a slip-and-fall case, the defense wants to introduce social media photos of the plaintiff hiking after the accident, claiming it proves the injury isn’t serious. The plaintiff’s attorney files a Motion in Limine, arguing the photos lack context and should be excluded as irrelevant or misleading.
- This happened to the firm in one particular case: The photo looked like the client was hiking, but the reality was she was driven there, as a passenger, and her and her driver pulled over and a photo was taken with her on the side of the road with a mountain in the background.
3. Preparing for Trial: Organizing Evidence for a Compelling Case
If settlement negotiations fail, attorneys move into trial preparation, ensuring that every piece of evidence is properly structured for presentation.
Key Trial Preparation Steps:
- Creating a witness list – Identifying which experts, accident victims, or medical professionals will testify.
- Organizing exhibits – Preparing photos, videos, medical reports, and accident reconstructions to present in court.
- Developing trial strategy – Crafting opening statements, cross-examination questions, and closing arguments to persuade the jury.
Example:
A plaintiff injured in a motorcycle crash has surveillance footage showing the defendant running a red light. Their attorney prepares the video as a trial exhibit and works with an accident reconstructionist to explain its significance to the jury.
FAQs
How long does the discovery phase take in a personal injury lawsuit?
- The duration of discovery varies but typically lasts several months to a year, depending on the complexity of the case and court-imposed deadlines.
Can a party refuse to answer discovery requests?
- A party can object to requests deemed overly broad, irrelevant, or privileged, but the opposing party can file a Motion to Compel to force disclosure.
What happens if a party lies during discovery?
- Providing false information in depositions, interrogatories, or documents can lead to perjury charges, case dismissal, or sanctions from the court.
Are discovery responses confidential?
- Some discovery materials, especially medical records and financial documents, may be protected by confidentiality agreements or court-issued protective orders.
Can discovery lead to a case dismissal?
- Yes, if evidence clearly disproves a claim or a plaintiff fails to comply with discovery requests, the defense can file a Motion for Summary Judgment to dismiss the case.
What role do private investigators play in discovery?
- Insurance companies or defense attorneys may hire private investigators to verify injury claims, often by conducting surveillance or reviewing social media activity.
How does electronic discovery (eDiscovery) work in personal injury cases?
- Emails, text messages, and digital records (such as vehicle GPS data) can be requested and analyzed to support claims of negligence or liability.
The discovery process can take anywhere from weeks to months and will almost always involve the client’s active participation. Your personal injury lawyer will prepare you for the discovery phase and help you understand your requirements.
The next article in our Legal Education Series will explore settlements and putting a case into suit in Understanding A Personal Injury Case: Part #3: What Are the Steps To Reach A Settlement?
At Murphy & Prachthauser we practice personal injury law the way it should be practiced – motivated and equipped to do our best for you. We take pride in being good lawyers who help people.
If you have a case you would like to speak to a lawyer about, get a free case evaluation now and get an experienced team of lawyers working on your behalf.