Common Discovery Tools Parties Utilize in a Personal Injury Case
If you suffered injuries in a personal injury accident, you might be able to obtain compensation for the injury claim without having to file a lawsuit by reaching a settlement with the insurance company. In Chicago and Illinois, after settlement negotiations with the insurance company, many injury claims settle without having to file a lawsuit or going to trial.
If the injury claim does not settle, you will have to seek compensation by filing a personal injury lawsuit, such as a car accident or medical malpractice lawsuit. After civil litigation commences, the court will require both the plaintiff (injured party) and defendant (party being sued or injury causing party) to engage in the discovery process.
This article covers the common discovery tools the parties in a personal injury case utilize during the fact-finding process.
What is discovery in a personal injury case?
Discovery is the formal process of finding (discovering) and exchanging relevant information between the parties. In a personal injury lawsuit, all named parties have the right to conduct discovery. Discovery helps eliminate any potential surprises at trial.
The discovery phase allows each party to gain a better understanding of the facts surrounding the personal injury lawsuit, obtain evidence, and plan and prepare for the potential personal injury trial. During the discovery process, the plaintiff’s attorney and defendant’s attorney can assess the strengths and weakness of the personal injury lawsuit, including case value and damages, through fact gathering and various discovery devices.
The discovery process allows the parties to disclose the evidence they plan to present at trial, such as witnesses, any expert witness, exhibits, pictures, and videos. Ultimately, discovery allows each party to investigate the facts of a personal injury claim and properly prepare for mediation, arbitration, settlement, or trial.
Discovery is the lengthiest and most time-consuming phase of a personal injury lawsuit. However, discovery is an essential part of any civil lawsuit.
What discovery tools do parties commonly use in a personal injury lawsuit?
The Illinois Supreme Court Rules provide various discovery tool to facilitate the exchange of information between the parties, such as:
- Requests for Production
- Requests for Admissions
Interrogatories are a formal set of written questions propounded (which just means “sent by”) by one party to the adverse party, which are governed by Illinois Supreme Court Rule 213. The propounding party is limited to serving a maximum of 30 interrogatories, which includes sub-parts, to the answering party. The party answering the interrogatories has 28 days to return their answers or objections to the propounding party. The party receiving the interrogatories must respond by answering or objecting to each interrogatory.
The Illinois Supreme Court has created form interrogatories for common types of personal lawsuits, such as car accident lawsuits and medical malpractice lawsuits.
Requests for Production
Illinois Supreme Court Rule 214 governs production requests. Requests to produce allow any party to the lawsuit to submit a written request to the other party directing them to produce for inspection, copying, photographing, testing, or sampling:
- Specific Documents
- Electronically Stored Information (“ESI”)
- Objects or Tangible Things
- Permit access to real estate for inspections or surveys
Requests to produce must specify the due date for the response, location for production, manner the party will carry out their request, and must be relevant to the subject matter of the personal injury lawsuit. The requesting party must allow a minimum of 28 days for the responding party to comply with the production requests.
After the propounding party serves their production request, the responding party may either produce the materials in their possession or object to the production requests in writing. If the responding party withholds the requested materials based on privilege, the responding party must provide a privilege log stating the exact privilege they are claiming and describe the material being withheld.
Requests for Admissions
A request for admission (also known as requests to admit) is a written discovery tool that asks the opposing party to respond under oath by:
- Admitting or denying the truth of a specific statement; or
- Authenticating any relevant documents
Requests for admission are limited to a maximum of 30 requests for admission, which includes sub-parts, for each party. Illinois Supreme Court Rule 216 governs requests for admission of fact or genuineness of documents.
After being served with the requests to admit, the receiving party has 28 days to answers. In answering, the responding party can admit, deny, object, or explain why the specific request cannot be admitted or denied.
If the answering party admits to a request for admission, the statement is considered to be true for the purposes of the current litigation. In very limited circumstances, the party’s admission can be used against them in another proceeding or lawsuit. If the receiving party fails to answer the request to admit, each request will be treated as an admission.
In a personal injury lawsuit, requests to admit can serve various purposes, such as:
- Narrowing the disputed issues between the parties
- Establishing the essential elements or proof need for the claim
- Reducing the amount of time and money spent on discovery
- Reducing the amount of evidence the trial court will have to consider
For example, in a medical malpractice lawsuit, an issue might be whether the doctor is an independent contractor or hospital employee. During discovery, the plaintiff could take multiple depositions and submit production requests for documents to establish whether the doctor is an independent contractor or hospital employee. However, the personal injury attorney could also send a request to admit asking about the doctor’s employment relationship with the hospital.
In turn, requests to admit can establish an essential element of the case and save time and resources.
Unlike the discovery methods discussed above, a deposition requires a party to appear in-person and provide their sworn testimony. Depositions commonly occur after written discovery is completed. In Illinois, a deposition is limited to 3 hours. A deposition does not take place in the courtroom. Rather, the deposition will usually take place in an attorney’s office or the court reporting company’s office.
At a deposition, the people commonly in attendance consists of a court reporter, the deponent (party answering the questions), and attorneys for the parties. A court reporter’s role is to create a verbatim transcription of everything said during the deposition. If the deposition is being video recorded or the deponent needs a translator, a legal videographer and court-certified interpreter will be present.
At the start of the deposition, a court reporter will administer the deponent’s oath. Next, the opposing counsel will ask the party-deponent a series of questions regarding the circumstance surrounding the lawsuit, and the deponent will respond to each of the questions. After direct examination, the deponent’s attorney will have an opportunity to cross-examine them and ask a series of questions.
During the deposition, either attorney may make an objection to a question if there is a reason. After the deposition is completed, the court reporter will create a deposition transcript for the parties.
If you need legal advice about a personal injury claim, contact Kasan Law for a free consultation.
At Kasan Law, we represent all personal injury clients on a contingency basis. This means you pay no legal fees unless we obtain compensation for your injuries.
If you or a family member suffered injuries due to someone else’s negligence, contact our Illinois and Chicago personal injury lawyers to schedule your free consultation by calling (312) 300-6724, e-mailing us at Info@LawKasan.com, or schedule your consultation online.