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  • Writer's pictureSarah Morris Ocampo

Litigation Series Part 2: What is Discovery?

Today we’re continuing our litigation series with “What is discovery?” When we jump into the question, what is the discovery process? The reason I mentioned this is because it is part of the litigation process. It’s what happens after you file your complaint. You serve it on the other side, the other side answers. And then you hold what’s called a 16.1 conference and then you go move into discovery.

Discovery takes on average in a district court case that’s outside of arbitration, we’re talking about most of the time, six months to a year of discovery. So what does this mean? This literally means it’s the time when you have an opportunity to get information and documents from the other side to help build your case or figure out where the holes in your case are. Things like written questions, which are called interrogatories, you can submit them to the other side and have them answer them. You can also submit requests for what’s called production of documents, meaning you can ask the other side to produce certain documents. You can also submit what’s called requests for admissions and that is asking the other side to have admit to certain things.

All of this is done in an effort to get ready for trial, to prepare your case for trial, to figure out what the other side has and what their theory of the case is, what their defenses are, where your holes are, so that you can start figuring out strategically how to make it work for you to win the case. Other things that happen within the discovery process are depositions. Depositions are a chance for each party to depose the parties themselves and also any witnesses or relevant people. These can be a big stressor for the parties themselves. Because what happens is if you’re the plaintiff, the defendant’s attorney has an opportunity to depose you, meaning that they’re going to bring in a court reporter to record everything you say and they get to ask you questions.

Of course, there’s limits on the types of questions they can ask you, but any question that’s relevant to the case, they can ask. Your attorney will be there and be able to object if there’s any improper questioning. It can be very daunting for parties to go through this because especially in a personal injury case where they don’t want to relive the accident, they’re going to have to go back and relive the accident. Most people don’t like it when things are being recorded and the court reporter is there recording. This is an opportunity for each side to gather information. That’s what discovery means. You’re gathering, you’re discovering things about the other side, gathering information to prepare for trial.

The other thing that happens within side the discovery process is people hire experts. In a personal injury case, you may hire an accident reconstructionist so they can reconstruct the scene of the accident and weigh in on whose fault it was, for example, that’s a type of expert in personal injury. There’s also medical experts. Especially from the defense side, they’re likely going to hire a medical expert to review all of the plaintiff’s medical records and the cause of her, his or her injuries, and whether they were caused by the accident and how bad they are and whether there should be any future treatment, et cetera. Experts can be very expensive, as you probably know, just by the name expert, they’re definitely charging by the hour, they’re charging a lot of money.

This is where litigation in general can be very expensive, time consuming and costly. That’s because think of all these things you have to do to, to build your case. You have to do written discovery. You have to do depositions. You may have to hire experts. When you hire experts or the other side hires experts, keep in mind that everybody’s going to be deposed. So that’s additional depositions, additional attorney time to plan and prepare and attend those depositions, plus paying the expert. So this is why litigation can be very, very costly and it can take a long time. Once the discovery process is complete, then we move on to what are called dispositive motions, which I will talk about in part three of this four-part series.

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