Cases are won and lost during the discovery process. Once we start on a case, we get all the records and we look into the facts of every witness. Once a lawsuit gets filed that’s when the official discovery process begins. Written discovery such as initial disclosures, requests for admissions and interrogatories make up written discovery.
In the lawsuit discovery process, initial disclosures are a list of witnesses, copies of medical records and other documents that will be used at trial. Requests for admissions are essentially a list of facts that the opposing side wants you to admit to. Interrogatories are a fancy way of asking questions of the other side before depositions.
Every case is different and because every case is different the number of documents largely vary. Even in simple cases, it is common to have several hundred pages worth of documents to review. In large cases, discovery documents can reach over a million pages. Needless to say, document review can be quite demanding during the discovery process. Document review is usually the biggest contributing factors in delaying the case.
Depositions are the sworn testimony of fact and expert witnesses. People who have knowledge of the disputed event will have to answer questions under oath. Every deposition will be taken with the threat of perjury penalties attached to their testimonies. Most depositions I take will be videoed. As much as the words of the witness will tell a story, their facial expressions will also tell a story. With video you are able to see who these people really are, and how they will present themselves to a jury. Depositions are also an opportunity to explore if there are other documents that may not have been disclosed which should have been.
Expert witnesses are largely determined by what is found in the reviewed documents and what type of case it is. Medical malpractice cases usually involve more expert witnesses. This is largely due to the underlying dispute being complicated, and the negligent standard being so hard to overcome. We may need a medical expert to testify of pre-existing conditions that may or may not have contributed to the patients pain as well as someone who can credibly testify of what should have happened during the surgery. Economists and forensic accountants are also commonly used to determine damages as well as a way to bolster or counter each other’s assertions.
In all phases of the discovery process it is imperative to understand that the devil is in the details and your attorney should be equally committed to each of the phases discussed above.