What to Expect During the Discovery Phase of Your Trial – Part 1
The Discovery Phase of Your Trial
Discovery is the process of exchanging information about the case with the other side of a lawsuit. This is a formal legal process governed by set rules. The law requires that both sides of a lawsuit share information about the case with one another on request. (Certain things, such as privileged communications between you and your law firm, are exempt from discovery even if they are specifically requested.) In most cases, the information exchanged includes information about your accident, the injuries you sustained, the nature and cost of your health care, the effect of your injuries on your life and your family, your employment background and your educational background.
Discovery is extremely important because it permits both parties to learn about the facts and issues of the lawsuit before trial. This allows both sides to build a case and evaluate the strengths and weaknesses of their positions. During settlement talks, the information you receive during discovery can be invaluable. Over the next few posts, our attorneys at John Bales will guide you through the trial process.
Your Records Are Essential in Discovery
As a plaintiff, you now have the responsibility to prove your case. But ironically, the defendant does not have to prove anything. Because the burden to prove your case is on you, your actions as a plaintiff are very important. Take the case of a 37-year-old construction worker who was hurt when a load of cement blocks were partially dropped on him, driving him to his knees. This injury caused him debilitating back pain, and because of it, he was never able to return to work.
The problem in the case was that all of the damages were based on an invisible injury — pain. Pain is very difficult to prove. But in this case, the injured worker was extremely consistent about attending all of his medical appointments, kept very good records, established reliability with his medical providers and had a long-established reputation for honesty and hard work.
Because of this consistency and reliability, all of the witnesses in the case were willing and able to give favorable testimony. The injured man’s medical providers were able to explain and support his claim for the unseen injuries. As a result, his lawyers were able to convince the defendants of the substantial risk of taking the case to trial, winning an out-of-court settlement large enough to supplement the man’s lost income and provide security for his family. In his role as a plaintiff, the worker did his job successfully so that his lawyers could do theirs.
The Importance of Being Earnest During Discovery
Complete disclosure of information during discovery is an important way to come to a settlement, but it is also important if you end up in trial. This was illustrated by the case of a client who failed to inform her lawyer that she had been denied a promotion at work because of her injuries, resulting in over $20,000 a year in lost income. She thought it would be better to “surprise” the insurance company with this information at trial.
However, because this client had failed to bring this information up in discovery, the defendant was able to prevent her from testifying about it at trial, because it had not had an opportunity to investigate that part of her claim. The judge ruled that because the information was not provided before trial, as required by the rules of discovery, it could not be presented to the jury.
This mistake by the client prevented her from recovering compensation for lost wages that totaled $400,000 over her lifetime. The client still won her lawsuit, but the judgment did not include any compensation for her lost future income. Not only could she have won more by disclosing this loss before trial, but she could also have increased her chances of settling the claim for a larger amount — without going to trial at all.
Quick Results Help Family in Need
Sometimes, a quick settlement is one of the most important services a personal injury lawyer can provide, as with one a tragic wrongful death case. In this case, a young and growing family was in a serious car accident that killed the wife and her unborn child, leaving the husband a single parent of a two-year-old. Thankfully, the two-year-old was not seriously injured. The husband, his mother and his child filed a wrongful death and personal injury lawsuit.
Because the driver responsible for the accident did not have substantial assets, the family’s law firm knew it was important to identify and collect from all available insurance policies. The firm worked quickly and was able settle these claims in just eight months, for an amount exceeding $1 million. Although that money could never bring back their lost loved ones, receiving this large settlement quickly allowed this grieving father and husband to move on with his life and take care of his child.