The pretrial discovery process is the means by which parties to a lawsuit compel the release of evidence that is in possession of the other party, or sometimes a third party.
Discovery takes place after the plaintiff files a personal injury or wrongful death lawsuit, and each party can seek a court order compelling the other party to release evidence. The discovery process provides several tools for dithering evidence, and a court can sanction a party that refuses to cooperate.
The first step in the discovery process is a pretrial meeting between the parties, where they conduct initial disclosures of the following information:
- The names of people who may have relevant information, their addresses, and a description of the information.
- A description of documents that the party might use as evidence.
- A detailed numerical explanation of any damages claimed by the opposing party.
- Details of any applicable insurance policies.
Initial disclosures help the parties determine what evidence to demand from the other party.
A deposition is like a cross-examination of a witness, except that it does not take place in court. The witness is questioned under oath, and any intentionally false statement about an important matter could lead to criminal liability. Depositions can serve various purposes:
- They can tell a party which witnesses are most convincing, which ones are most likely to crack under pressure, which ones are most likely to be lying, etc.;
- They can elicit information that might lead to the discovery of admissible evidence; and
- They can elicit testimony from a witness that the opposing party can use to discredit that witness if they make an inconsistent statement at trial.
Judges are usually not even present at depositions, but the deposition is usually recorded in some way or another, and either party can use the recording as evidence at trial.
Interrogatories are written questions that one party sends to another party. The recipient must answer the questions under oath and within the deadline provided. You can be sure that the opposing party will exploit any inconsistencies between the answers to interrogatories and testimony offered during a deposition or at trial.
Requests for Production of Documents
A “Request for the Production of Documents” is not actually limited to requests for the production of documents. You may demand:
- Copies of documents, or at least the opportunity to inspect them.
- Inspection of physical objects in the other party’s possession, such as a defective auto part that a plaintiff is using as the basis of a product liability claim.
- Access to land. This might matter if the plaintiff is suing the defendant over an allegedly dangerous condition on the defendant’s property.
You can also demand access to other forms of evidence under this rule.
Independent Medical Examinations
When one party claims compensation for injuries, they will present medical evidence in support of these claims. The defendant might wonder if the medical records coming from the plaintiff’s doctor are biased. As such, the defendant might demand that the plaintiff submit to an Independent Medical examination (IME) conducted by a doctor the plaintiff did not hire. This could lead to a “battle of the experts” in court.
Parties will ask other parties to admit facts or legal convulsions that they do not want to bother proving. A plaintiff might ask a defendant, for example, to admit that the driver who is accused of causing the accident was acting within the scope of his employment (so the accident victim can sue the employer).
If one party asks the other party to admit a fact, and the other party does not reply in writing within 30 days, the court will treat the case as if the party had admitted the fact. Admissions simplify the case for both parties because it reduces the number of facts that the parties need to prove.
The Nevada Rules of Evidence specify which evidence is admissible-–in other words, which evidence you can and cannot use at trial. During the discovery process, however, you can seek almost any information that is even designed to lead to admissible evidence. This rule allows a much broader scope of inquiry than is possible at trial.
How Discovery Can Encourage Settlement
The more prepared you are for trial, the less likely the defendant is going to want to see your case make it to that point. If your case is strong enough, the defendant will almost certainly settle out of court, saving you a lot of trouble. The more effectively you conduct the discovery process, the more likely you are to gain access to evidence that will keep you out of a trial.
Find an Experienced Lawyer to Help You
If your claim is reasonably large, you probably need a personal injury lawyer to negotiate your claim. You engage in the discovery process, however, only after you submit a formal complaint to initiate a lawsuit.
You will need a lawyer for a lawsuit, at least as long as your claim is larger than the maximum that you can litigate in the Las Vegas Small Claims Court ($10,000). Remember that you may never know for sure how much your claim is worth until you consult with a lawyer. Almost all personal injury lawyers offer free consultations as well.