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Personal Injury Litigation and the Discovery Process

The Discovery Process

In the old days, trials were even more like war than they are now. Modern discovery rules have put an end to the sneak attacks that until recently characterized litigation. These days, each side is required to respond to the other side’s requests for information concerning the case. If it fails to do so voluntarily, the court, upon the motion of the requesting party, will order the recalcitrant party to provide discovery. If the attorneys do their jobs properly, 90% of what happens at the trial can be anticipated and planned for.

The discovery process involves three stages:

  1. interrogatories and exchange of documents;

  2. depositions; and,

  3. the independent medical examination.


The first stage of discovery consists of answering written questions (called interrogatories), and the exchange of relevant documents. Each side submits a written request for all relevant documents, as well as for answers to these interrogatories.

Forms 3 and 4 from my book are sample sets of Interrogatories. (see form 3, p. 203. and form 4, p. 219.) Unfortunately, these written questions generally do not yield much useful information. Lawyers typically answer them in a vague manner to avoid having these answers used against their clients later in the litigation.

Example: An interrogatory may ask how fast the defendant was traveling when he first saw your car. The defendant may tell his attorney that he was going 35 m.p.h. at that time. The defense attorney may, however, choose to be less specific when answering this interrogatory. He may indicate in the answer that the defendant was traveling within the speed limit at the time he first saw the plaintiff’s car. If, at the defendant’s deposition, the defendant testifies that he was going 25 m.p.h. at that time, an inconsistency has been avoided.

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