Litigation Timeline Part II: Discovery

After the complaint has been filed and a response from the defendants, the meat of the case truly begins. This is called the “Discovery Phase.” While there is an initial investigation to make sure the claims are enough to file a lawsuit, the discovery phase is where the full investigation occurs. The reason it occurs in discovery, and not before, is because outside of a lawsuit being filed, defendants are under no obligation to turn over certain information.

For example, if you’ve been injured in a slip and fall accident and there is video footage of the accident, the store is under no obligation to turn over the video before a lawsuit is filed. Once a lawsuit is filed and they are served the lawsuit, they are under the rules of the court and required to turn over requested evidence associated with the personal injury claim by the plaintiff.

Discovery is a large beast. Before we get ahead of ourselves, let’s break down the different types of discovery you can expect: oral and written.

Oral Discovery

Oral discovery is most commonly referred to as a deposition. A deposition is essentially an interview under oath where an attorney asks questions of the witness. The people present (usually) are: a court report, the witness, the witness’s lawyer, and the lawyer giving the deposition. The plaintiff or defendant are permitted to be there if they are not being deposed themselves. Depending on the circumstances of the case, this is up to the attorney whether it’s a good idea or not.

In a personal injury action, you will usually see several depositions: plaintiff, representatives of the defendant such as different levels of employees related to the case, witnesses, and expert witnesses.

Written Discovery

There are three types of written discovery in California: Requests for Admission, Request for Production of Documents, and Interrogatories.

Requests for Admission (RFA)

RFA’s are a tool for plaintiffs or defendants to ask the other party to admit or deny a statement under oath. If admitted, this means that for all purposes during the course of litigation, that statement can be deemed as true and cannot be denied. RFA’s can also be used to verify if a document is genuine and unaltered.

RFA’s can be used both early and later in litigation to clear up uncontested issues to simplify a trial.

Request for Production of Documents (RPD)

This is exactly as it sounds: the plaintiff or defendants request documents from the other side. This includes contracts, leases, insurance policies, medical records, bills, etc. However, as technology has advanced as far as it has today, this also includes what is called “Electronically Stored Information” (ESI) and metadata (we won’t get into that as it is way to complex for the purposes of this article…we’re trying to keep it simple!)

Interrogatories

Interrogatories are a set of written questions that the plaintiff or defendant must fill out under oath to the best of their ability. In California, there are two types: form interrogatories and special interrogatories. Form interrogatories are a form with the questions already written out—the party sending the discovery just checks the box of the questions they would like answered and then they send them out. Special interrogatories, on the other hand, are specially crafted questions by the lawyers to get certain answers. These can be used in various contexts, but an example would be to try to find out a list of employees at a business who can be deposed.

What Does this All Mean?

Depending on the type of information being requested, the party sending it may try to stall or hide it as much as they can. This can be done through objections or evasive answers. A simple yes or no question can turn into a several month back and forth battle between the parties because the answer could dictate how the case goes. Judge’s hate to referee discovery battles because they can become nasty and are very time consuming. However, if the defense possesses something they believe could tank your case, they may be willing to give it up right away in an effort to convince you to drop it.

Discovery is both time consuming and expensive for both sides, but it is one of the most (if not the most) important times during litigation. This is the time where the attorneys get the evidence to back up (or disprove) the claims being made in the initial lawsuit. Depending on the complexity of the case, judges may be more or less willing to keep discovery open for the parties to continue asking their questions. However, once there is a trial date and the judge feels as if the parties have had enough time to do their investigations, discovery closes 30 days before the trial unless the judge rules otherwise.

Next up: Litigation Timeline Part III:

Litigation Timeline Part I: Pre-Litigation and Filing of the Lawsuit

Many clients come to us and say, “Well why can’t I just go before a judge and tell my story? I can do that right now. They will get it.” What the client is actually referring to there is “due process.” Due process is the Constitutional right that the American government operate within the law and provide fair procedures. Or in other words, “getting your day in court.” Our client will get their day in court, but so does the other side. Before the sides get to go before a judge or jury to tell their story, a lot of things must happen. The first of which is preparation up to and including the filing of the lawsuit.

In all states, it is unethical for an attorney to sign their name to documents they do not believe have evidentiary support or can demonstrate support once there has been further investigation. This means that attorneys have an ethical obligation to conduct what is called due diligence before a case. Due diligence is defined as “reasonable steps taken by a person in order to satisfy a legal requirement.” But it is not just fulfilling an ethical obligation. Sometimes due diligence can turn up information that can help a case be resolved quicker; or unfortunately, it can also demonstrate that where it appears a case has merit, that it will be defeated and could expose the client to liability.

In the first stage after a client has retained the services of a law firm, the lawyer goes on an initial fact finding mission with the client: the who, what, where, when and how of the case. This is to first get the backstory, but then also to pinpoint where there needs to be further investigated. For example, were there witnesses? Are there documents that need reviewing? Pictures? Correspondence? Medical records? Police Reports? What is the case law? What kind of expert witnesses will we need? Sometimes important information such as witness names, locations, police reports, or documents may need to be obtained down the road and are not available at the outset of the litigation. This can affect the timeline of how an attorney approaches a case.

Here are some examples of the pre-litigation stage. First, let’s say that a shopper slipped on a puddle at a grocery store and sustained significant injuries. There were no signs and video footage shows several employees failing to act. The injured shopper retains an attorney and the attorney is able to secure the video footage and make a demand to the insurance company before filing a lawsuit. On certain occasions, the insurance company will admit liability and the negotiation becomes about the dollar amount for the injuries sustained. If the two sides can reach an agreement, this significantly reduces time when a settlement is paid (a normal lawsuit can go between 12-24 months).

In another example, a hiker was on a pathway in a public park and tripped and sustained serious injuries. The rock could have easily been removed from the pathway. The attorney signs up the client and begins doing legal research on the case and finds the “Recreational Trail Immunity Statute.” This law provides immunity to public entities for injuries incurred on paved or unpaved walkways and trails (Government Code Section 831.4). Thus, because of the attorney’s research at the outset, it was found that no case existed due to the immunity. If the attorney took the case and lost, it is possible the client could end up owing money to the other side after trial.

It is more than an ethical obligation for an attorney to do their due diligence before filing a lawsuit—it’s just smart. By using the adage, “measure twice, cut once,” and doing work up front instead of rushing to file (admittedly, there are exceptions to every rule and sometimes the statute of limitations dictates this), lawyers are able to get better results for their clients.

Once the initial due diligence is completed and lawsuit filed, the opposing party must be served a copy of the lawsuit. Upon being served with the lawsuit, the opposing party or parties have 30 days to respond. There are a few different types of responses, but the main two are a “demurrer” and an “answer.”

A demurrer is a motion where the defendant basically says “you don’t have a claim.” Either the facts alleged don’t meet the standard necessary or there may be a legal defense to the claim (the trail immunity statute above would be an example of something that would likely be successful).

An answer is a response by the defendants where they will admit, deny, admit in part, or deny in part.
Each of the above types of responses has strategical variables associated with them. Typically, in a personal injury action the defendants will respond with an answer. However, this depends on the exact circumstances of the case.

Next up: Litigation Timeline Part II: Discovery