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Discovery is a distinct phase in the trial process. It is the exchange of legal information so that all sides can find out the facts of a case. Discovery happens before trial. The purpose of discovery is to prepare for trial, even if the case never gets there.
Each state has its own laws surrounding the nuances of the discovery process. There is a federal code pertaining to the discovery process as well. All evidence is obtained and disclosed during this time. Witnesses will be contacted; any relevant information about them will be disclosed. Throughout this time, attorneys continue to assess the case that could appear at trial. They are in settlement negotiations as well. Attorneys decide during this if they want to move forward with a trial or negotiate a settlement.
When it comes to discovery, it is an unavoidable step. It is mandatory for attorneys to not only take part but not withhold information as well. Sanctions can be served on anyone who disobeys discovery rules.
Discovery happens in both criminal and civil cases. Personal injury cases, such as those involving car accidents, are civil cases. There are various methods of discovery that personal injury attorneys can utilize. These are broken into three categories: oral, written, and inspection. Everything for discovery must be relevant to the case, which is an important distinction to make. Let’s dive into the different categories here.
Written discovery is anything that gets submitted in writing.
Interrogatories are written questions. Their responses by the opposing party must be in writing and under oath.
The documents that can get requested vary. They include:
If requested, copies of these documents must get submitted.
This method of discovery allows one party to request that the other admit or deny the truth of a statement under oath. It asks about the accuracy of a statement of fact or wrongdoing. If admitted, the statement is viewed as true for all purposes of trial.
A subpoena is “a written order issued by a court compelling a person to testify or produce certain physical evidence.” The production of books, documents, or other records is required for inspection. A subpoena can also apply to a person. If a subpoena is served on an individual, they must appear in court to testify.
Oral discovery is the discovery that is given by speaking.
Depositions are in-person or video meetings. A court reporter records them, and everyone is sworn in under oath. The lawyers are able to ask questions to discover facts about the claim.
Inspections involve a third party coming in to inspect something particular to the case.
Hiring a third party to inspect property related to the case.
Requiring someone to submit for a medical exam. Both mental and physical exams fall under this category.
Discovery gives each party the opportunity to know the evidence that may get presented at trial. As a result, they have time to obtain answering evidence. Discovery prevents trial by ambush. This is the notion that a party gets surprised by evidence at trial. They are unable to prepare a defense or an answer to it.
This also allows the parties to decide to settle out of court instead of proceeding to trial. Attorneys can engage in settlement negotiations as the discovery process is taking place. Notice is filed in court if a settlement is reached before trial. If the settlement is approved, it concludes the case. Ninety-five percent of pending lawsuits end in a pre-trial settlement. For personal injury cases, one in twenty cases is resolved in a court of law by a judge or jury. If settlement negotiations fail, the case will move forward to trial after the discovery phase is completed.
If there is nothing to dispute or discover, a motion for summary judgment can be filed. This motion can ask for two things. First, it can ask for the judge to dismiss the case. Second, it can ask for the judge to rule on the case without a trial.
Attorneys can also submit requests that evidence ought to be excluded from the trial. This is another important strategic move if the evidence is irrelevant, more prejudicial than probative, or unreliable.
This answer varies greatly. Generally, it can last a few months. If the case is long and complex, discovery can go on for a year or more.
The end of discovery is either dictated by the court or agreed upon by both parties. It ends based on the day trial is set to begin, known as the discovery cut-off.
While the discovery process may seem arduous, it is crucial for any case. If you are facing a personal injury case, contact a personal injury attorney today.
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