The Discovery Process in a Personal Injury Case
April 17, 2023
Personal injury includes a wide number of case types. They range from car accidents, premises liability, and medical malpractice to industrial accidents, defective products, and more. When you file a third-party liability claim against the negligent party’s insurance company, you and your personal injury attorney have the opportunity to negotiate a fair settlement based on the known facts and evidence.
What about all the evidence that might strengthen your case but neither the negligent party nor their insurer is obligated to disclose it?
To compel disclosure of valuable information, you and your attorney will need to file a lawsuit against the negligent party. The brief two-year statute of limitations on personal injury claims in Texas means that most victims file suit. However, only about 4% of personal injury lawsuits filed nationwide actually go to trial. Some 67% settle after suit is filed. Unlocking key evidence is a main reason why.
Filing a lawsuit unlocks this information via what is called “discovery,” and I know how to use the discovery process to the advantage of each and every client I represent from Houston, Webster, South Houston, Pasadena, League City, Clear Lake, Friendswood, Kemah, Dickinson, Bacliff, Alvin, Santa Fe, and Seabrook, Texas. My firm, Jose Orihuela, Attorney at Law, is all about discovering what will build a compelling case for your compensation.
What Discovery Is and Why It’s Important
To build your case for compensation in a personal injury claim, you will need evidence to prove someone owed you a duty of care, they breached that duty, and that as a result, you were injured and incurred damages. The burden of proof is on you.
Some information that could be critical to your claim may not be volunteered by the person who injured you or their insurance company. Examples include copies of all liability policies held by the at-fault party, mobile phone records, statements made by the at-fault party, and their employee files, which could be critical in cases involving industrial or commercial trucking accidents.
Once you file a lawsuit, you are allowed to request such information. Your attorney will use several tools to compel the defendant to disclose it, such as subpoenas, depositions, document requests, and more. Unlocking access to them may open the door to prevailing in your injury claim.
What Are the Types of Discovery?
To understand the discovery process for a personal injury case, you should know the five key tools personal injury attorneys have at their disposal to uncover valuable information:
Interrogatories are written questions your attorney will submit to the defendant’s attorney, which is typically an attorney for the defendant’s insurance company. Once formally served to the defendant’s attorney, they have a certain number of days to object to any questions and to formally submit responses to those questions to your attorney. If attorneys for both parties cannot resolve the objections, they will be argued before the judge in the case, and the defense attorney will be compelled to respond as ordered.
Requests for production of documents are written requests formally served by your attorney. As the name implies, the instrument requests that the defendant produce specific documents relevant to the case. Document production might include employee, training, medical, or phone records, photos, receipts, and insurance policies, among others.
If the other attorney objects to producing certain documents, such as cell phone records, your attorney may ask the court for a subpoena to produce them. Your attorney may also need to subpoena witnesses or others for depositions or testimony at trial.
Requests for admissions may be used later in the discovery process, usually to address certain discovery requests in dispute. For example, your attorney may be unable to obtain certain cell phone records but can ask the defendant whether they were on the phone at the time of an accident. You can also ask the defendant to confirm or deny certain statements. Requests for admissions put the defendant’s responses on record. Those that may be proven later to be false constitute perjury.
A deposition is an oral testimony under oath. Your attorney can depose a party, asking specific questions of that party with their attorney present. Depositions may be used as evidence in court and can serve as testimony rather than having that party respond to questioning in person during trial.
Responses to each and every one of these discovery measures require that the respondent sign, verifying that all information provided is true to the best of their belief. As such, untruthful disclosures or failures to respond constitute perjury.
You should also understand that discovery is not a one-way street. Attorneys for the defendant will also use these tools to discover information about you as well.
What Information Is Relevant in Discovery?
What can and cannot be obtained during the discovery process is subject to the Texas Rules of Civil Procedure. In general, information that is relevant to the case is discoverable, and those who wish to avoid disclosure can be compelled by the court to do so, even if privilege is attached.
For example, medical records are protected by privilege. However, when you allege injuries resulting from the accident that is the subject of your personal injury lawsuit, you will need to waive that privilege to allow the defendant to review your records. You might assume, then, that only the medical records from the date of the injury and relevant to the accident injuries are discoverable, but that is not necessarily true. The defendant will also have a right to review certain medical records to ascertain whether any pre-existing or coinciding injuries are relevant to your case.
This can all be quite complicated. What you need to know is that an experienced personal injury attorney will know the Rules of Civil Procedure inside and out. Not only does that ensure that your attorney knows what to ask the defendant to disclose, but they also know what you are and are not required to disclose to the defendant.
How Long Does the Discovery Process Take?
Although there are time requirements involved in discovery, the process usually takes longer. In general, the party served discovery requests has 30 days to respond to them. However, if the party objects to certain requests, response to those contested matters is delayed until the parties’ attorneys work them out or a judge rules on them.
Moreover, once a party reviews the evidence obtained in discovery, it could lead to additional requests. For these reasons, the length of time discovery takes will depend on the case.
Get the Support of a Passionate Attorney
I am passionate about the law, the value of the discovery process, and the Rules of Civil Procedure. Most of all, I am passionate about helping my clients get the compensation they deserve from the parties who harmed them. Although most of my cases, like those throughout the country, settle before actually going to trial, I am not afraid to step into the courtroom and present my clients’ cases to the judge and jury. I am a trial attorney.
If you want passionate representation in your personal injury claim in Houston, Webster, or throughout Texas, call Jose Orihuela, Attorney at Law right now to schedule a free case consultation.