By Lawrence Flick
After your car crash suit has been filed, procedures in most courts let the lawyers request information from the other side and outside parties which may be used as evidence in the case. This process is called “discovery” and can help your car wreck lawyer properly prepare your case. It can also help us and the lawyer for the at-fault driver to evaluate the strengths and weaknesses of their case and can be the basis for realistic settlement negotiations.
Discovery procedures provide a set of tools which lawyers can use to obtain information for your case. These include interrogatories, request for production, requests for admissions, depositions and business record subpoenas. Each are described in detail below.
These are sets of written questions to be answered under oath within a specified time period, usually 30 days. In many jurisdictions court rules limit the number of interrogatories which may be used. For example, under the Federal Rules of Civil Procedure interrogatories are generally limited to 25. State court rules on the number of interrogatories vary.
As your Kansas City car accident lawyer we have the right to send interrogatories about your car accident to the lawyer the insurance company has hire to represent the other driver. Some of the areas that we might ask about include information about insurance policies which may provide coverage for damages arising from your auto accident, investigations of the car wreck conducted by the insurance carrier or others, expert witnesses that the car insurer or defense lawyers may have hired to provide opinions concerning your auto crash or injuries, whether the defense lawyers claim that parties other than the driver causing the car accident are in some way responsible for your injuries and prior car accidents the other driver was involved in. This is just a sample of issues that we often ask about in interrogatories in car crash cases.
Some typical questions that the car insurance company’s attorney might ask in interrogatories in your car accident case are basic demographic information like your name, date of birth, place of birth and social security number, present and past addresses and marital status. They will also probably ask about information specific to your car accident like injuries you sustained in the car crash, lost time from work, medical treatment for injuries sustained in your auto accident, medical expenses for this treatment, witnesses to the car accident, the existence of scene videos or photographs, written or recorded witness statements and other documentation. This represents just a partial list of subjects that we have seen defense attorneys for car insurance companies request in interrogatories. For additional information on interrogatories please see our Personal Injury Lawsuit Interrogatories page.
Requests for Production
This discovery tool allows lawyers to request documents, computerized records, other information stored in electronic formats and to request the inspection of specific items or premises. Generally, the side being requested to provide the information has thirty days to produce it. At present, many courts do not limit the number of production requests that each side may send.
In a typical car accident lawsuit some of the things we might ask for in a request for production are copies of car insurance policies, the insurance company’s claim file for the case, police reports, witness statements, expert witness reports, videos or photos of the car accident scene and damage to the vehicles involved.
Some of the things that the auto insurance company’s lawyers might use a request for production to obtain include your medical records and medical bills for treatment of injuries sustained in the car accident, expert witness reports, photographs or videos of the scene of the car accident, photos or videos of damage to the cars involved and information about witness statements.
The defense lawyers for the car insurance company may also use a request for production to ask you to sign medical releases authorizing them to obtain your medical records or releases will go to obtain other types of records. In a number of cases we have successfully resisted the use of requests for production to have clients sign these authorizations.
Requests for Admissions
Requests for admissions are one of the less commonly used discovery tools in car accident cases. Requests for admissions allow lawyers to request that the other side admit certain facts, for example, facts which should not be in dispute. These admissions may then be used at trial instead of having to provide formal proof on a issue that is really not in dispute.
Some of issues that we might use requests for admissions to ask the other side to admit in your car crash suit are facts needed to show that the court has jurisdiction in the case, that the case was filed within the required time limit and basic facts about your car accident. The other side generally has thirty days to respond. If they do not deny the request within that time, they may be considered to be admitted.
Business Record Subpoenas
Written discovery tools like interrogatories, requests for production and requests for admissions are typically sent between parties to a lawsuit. Businesses, other organizations or people not directly involved in your automobile accident lawsuit often have documents or other information which may relate to issues in your case.
One example might be a vehicle accident case where your injuries have caused you to lose time from work or it is expected that physical limitations caused by your injuries will prevent you from doing certain kinds of work in the future. In these cases documents and information concerning your past earnings and employment history can become very important. This is just one of many examples where documents or other information in the possession of companies and other parties who aren’t directly participating in your case can be important.
Discovery procedures provide a way to obtain this information. They are a special form of court order, often called a business records subpoena. Basically, a business records subpoena is served on the company, organization, or person possessing the documents needed, ordering the person to produce those documents at a specified location within a set time period.
When a party to the case serves a business records subpoena, they are typically required to provide notice to the other parties in the case. The organization or person on whom the subpoena is served and the other parties in the case usually have certain number of days to object to the production of the things requested in the subpoena. Generally, if they don’t object within the time frame specified, they will be expected to produce the items requested.
Business record subpoenas can be powerful tools to obtain documents and other information which may be very difficult to obtain otherwise.
Depositions are one of the most powerful discovery tools. They also tend to be the most or one of the most expensive to use. Court rules and/or orders frequently limit the number and length of depositions. Rather than simply getting written answers which are typically prepared or reviewed by lawyers for the other side, a deposition allow lawyers to have face-to-face real-time question-and-answer dialogue with the witness. This lets the lawyer evaluate witness’s credibility and how they might be perceived by a jury at trial, find out what the witness’s story is and get them committed to one specific version of it. In certain situations, the deposition testimony may be introduced into evidence at the trial.
In a deposition a witness (sometimes called the deponent) is requested, or subpoenaed to appear at a specific time and answer questions under oath. Depositions are often held at the office of one of the lawyers involved in the case or a court reporter’s office. They may also be held at other locations like the witness’s place of business or a courthouse.
A number of people will typically be present at the deposition. The witness being questioned and a court reporter will almost always be present. The court reporter records the questions asked, answers provided and objections or other dialogue on a stenographic machine, and often also on a tape recorder. After the deposition is over the court reporter will prepare a written deposition transcript from a stenographic notes and tape recording.
Depositions are often taken at the offices of one of the lawyers or the court reporter however, they may also be held at locations like, courthouses, the deponent’s place of business or other locations.
Depending on the number of parties and lawyers involved in your car accident lawsuit, there will typically be two or more attorneys present at the deposition. In some cases, the lawyer taking the deposition also wants to have a video recording of it, and in that case, a videographer may also present. Questions the lawyers ask in a deposition vary depending on which side is taking the deposition, which witness is being questioned, the purpose of the deposition and other variables.
One of the most common depositions in a car accident case is the deposition of the injured party taken by the lawyers for the car insurance company. Some of the areas typically asked about are basic background information like name, whether you are married, have children, present and past employment, education, present and past residences. The defense lawyer will usually want a detailed description of your version of how the car accident occurred and will also typically want to ask in detail about your injuries, medical treatment, lost time from work/income an ongoing medical problems which you attribute to injuries sustained in your car wreck. This is just a representative sample of the questions we have seen defense lawyers ask car accident victims in depositions.
We will typically want to take the deposition of the driver responsible for your car wreck. Some of the subjects we usually question the other driver about are basic information like their name, address, marital status, educational and employment background, their version of how the auto accident occurred and the events leading up to it.
Treating doctors are another witness whose deposition is frequently taken in cases involving car crashes. Some of the areas your treating doctor may be asked about include your injuries, whether they were caused by your car accident, the treatment you received, your diagnosis, any permanent disability and how it limits her ability to work, and needs for ongoing medical care. Typically, your doctor’s deposition will be recorded by video in addition to the court reporter’s transcript. The video is frequently used during car accident trials in lieu of live testimony by the doctor.
Physical and Other Examinations
In an auto accident case the nature and extent of your injuries and whether they were caused by your car accident or a pre-existing condition are key issues. Also important are whether the medical treatment that you have had was necessary to treat your injuries, the extent of any permanent or future disability and your need for additional future medical care.
Your treating doctor and other health care providers most likely have information, evidence and opinions which relate to these issues. In part to allow the insurance company and/or their lawyers to obtain a “second opinion” on these important issues, discovery procedures provide for physical and in some cases other types of examinations by doctors and other professionals that they select. These examinations are referred to by a variety of names like defense medical exam (DME) or independent medical examinations (IME)
Typically, the defense lawyer or insurance company requesting the examination selects the doctor or other professional who will perform the exam and pays the costs of the examination. Physicians and others performing these examinations/evaluations run the gamut. Some are highly respected, well credentialed professionals who provide a fair and objective evaluation.
In one case handled by Flick Law Firm, the defense lawyers requested an exam by such a doctor. He wrote a very fair report, basically verifying our client’s claims which was very helpful to us in the case. And we certainly weren’t upset that the insurance company, which had not been easy to deal with, paid for it.
Unfortunately, in some cases, insurance companies and/or their lawyers have been known to select doctors or other professionals whose evaluations and reports, rather than being objective and middle-of-the-road, have a track record of tending to support the position that the insurance company is taking.
Through a series of educational programs at the University of Kansas Medical School, Lawrence Flick acquired medical knowledge needed to develop techniques to attack and discredit these kinds of biased medical opinions. We also have other ways to try to prevent these types of opinions and reports becoming part of the evidence in your case.
Because defense lawyers and insurance companies visit this site, as a potential client probably don’t want us disclosing too much about how we do this. But please know that when you hire Flick Law Firm for your case, these capabilities will available for you, should the need arise.
Discovery Objections and Disputes
Discovery is not an open license to what go on what is sometimes referred to as a “fishing expedition”, hoping that by asking for enough information that sooner or later something useful will be found. Rather, court rules and decisions limit what can be asked for and the way it is requested. One standard that is commonly used, is that the information that is being requested has to be “reasonably calculated” to obtain documents or other information which could be admitted into evidence in your case.
When the lawyers for one side in a case send the lawyers for another party discovery like the interrogatories, requests for production or request for admission described above, the party receiving the discovery requests typically has a set period of time (often 30 days) to respond.
The responding party may provide the information or documents requested or may object to providing part or all of the information sought. Typically, the lawyer for the party who does not want to provide the information will object, basically claiming that the requests exceed the limits of what the discovery rules allow to be requested, are not properly presented or don’t meet the requirements for discovery requests in some other way. Objections like overly broad, seeks attorney work product and burdensome are some of many commonly seen objections. The attorney for the side making the objections will send their answers and objections to the lawyer requesting the information and usually provide copies to the other lawyers involved in the case.
When the lawyer who used discovery to request the information receives the objections he or she will typically review them and may contact the attorney making the objections. The lawyer who sent the discovery may try to work out an agreement with the other side to provide all or part of the information requested.
If the lawyers cannot agree about what information should be provided or is properly objected to a “discovery dispute.” exists. In that case, the lawyers may request that the judge in front of whom the case is pending to resolve the dispute. A telephone conference between the lawyers involved and the judge is one way that these discovery disputes can be resolved. In other cases a lawyer for the party requesting the information may file a” motion to compel”. This is basically a request that the judge order the objecting party to provide the documents or information sought.
If the judge determines that the information or items sought by the discovery requests exceed the limits of what is permitted, the judge will typically sustain the objection and rule that the information does not need to be provided. If the judge determines that the requests are proper, he or she will typically overruled the objection and order that the information or documents be provided.
Many of these discovery procedures apply not only to car accident cases, but truck crash cases as well. For more information about those cases please see our truck wreck page at: http://www.flicklawfirm.com/truck-accident-lawyer/.
In addition for the discovery tools described above, the Federal Rules of Civil Procedure (which apply to civil cases in federal court) require a series of initial, supplemental and expert disclosures. Procedure in state courts varies. Some have adopted these requirements to varying degrees.
Initial disclosures are intended to quickly and efficiently get certain basic case information on the table early in the case without the time, expense and delay involved with using discovery tools like interrogatories and depositions. Under the Federal Rules of Civil Procedure each side is required to disclose information about people with information about the case that might be used to support claims or defenses, documents that either side might use in the case, a damage calculation and copies of insurance agreements. As examples of the kinds of information or documents that might be provided as a part of initial disclosures in a car accident case in federal court, you should receive a copy of the responsible driver’s car insurance policy and probably will provide a calculation showing how the amount of damages you are claiming was determined.
The Federal Rules of Civil Procedure also require “supplemental disclosures”. Basically, this is to update or add to information which was required to be disclosed in the initial disclosures, but changed or was obtained after the initial disclosures were sent.
Like initial disclosures, expert disclosures are intended to get certain basic information about expert witnesses out quickly without the need for using other discovery tools. Under the Federal Rules of Civil Procedure, expert disclosures are required to include the opinions the expert intends to provide, the reasons for them, the data or facts the witness considered in coming to their opinions and exhibits that will be used to support or summarize the opinions. They are also required to provide information about their qualifications, publications, prior testimony and how much they are being paid. State court expert disclosure requirements vary and may be similar or different from these.