Discovery Process in a Personal Injury Lawsuit

During the discovery phase of a personal injury lawsuit, the two parties investigate, gather evidence, and exchange any information they may need in order to make their case. Discovery ends when the plaintiff files or is given permission to file a note of issue, indicating that discovery is complete and that the case is ready for trial.

The discovery phase tends to be the longest phase of a personal injury lawsuit, and in particularly significant cases often lasts years. It is critical to establish a case before discovery is completed, because virtually no surprises are permitted at trial. The classic dramatic reversal in which a surprise witness shows up in court at the last second makes for great television, but it’s bad legal practice. So-called “trial by ambush” lends itself to dissatisfaction and demands for retrial in the wake of a conclusion.

Need to Know

• Discovery gives attorneys the freedom to pursue many sources of evidence—even those that may not, in themselves, be admissible in court. Any evidence that may lead to something relevant is discoverable.
• Good attorneys have several ways of getting the records they need, including subpoenas, FOIL requests, and FOIA requests.
• Trust between client and attorney is critical during the discovery phase.

In This Article

• What Information is Relevant in Discovery?
• How Does an Attorney Gain Access to Information in Discovery?
• How Should I Handle the Discovery Phase as a Client?
• Transparency is Critical

What Information is Relevant in Discovery?

Certain types of information requests will come up in just about every discovery process. For example, the plaintiff’s team will need to take depositions of the defendant and of key witnesses involved, and in a personal injury case, the parties will need to exchange medical authorizations and records, as well as insurance information.

Beyond that, however, the scope of discovery is very liberal, meaning that attorneys can—and will—seek out information that may not be admissible in court. At this phase of a case, the attorneys are attempting to get the fullest picture possible of what happened—a picture which will include the circumstances of their client, their opponent, the incident in which they were involved, and how it occurred.

For example, let’s say you were injured while working on a construction site. Certain construction personnel, such as foremen and project managers, keep daily logs of site activities. It stands to reason that you and your attorney will want to request the site logs from the day you were injured. An attorney who wants a deeper sense of the situation, however, may request site logs from a month, six months, or even a year going back. This information will put your accident in context by establishing what type of activity is normal on the site, and whether the events of your accident represented a departure from the norm.

In one case handled by Block O’Toole & Murphy, our client, a 21-year-old ironworker employed by a steel company, was seriously injured when unloading a delivery of steel beams from another company. The load, which arrived on a flatbed truck, was improperly stacked, causing 9,000 pounds of steel beams to collapse on top of our client, who sustained injuries requiring multiple surgeries—injuries that disabled him from his position as an ironworker. The steel company that delivered the beams contended that our client’s company was solely liable, which would have made the case a matter for workers’ compensation.

During investigation, our handling attorneys discovered news articles and other information that attested to two prior employee deaths at the defendant company. They decided to file a FOIA (Freedom of Information Act) request with the Occupational Safety and Health Administration (OSHA), which would grant them access to the government agency’s records on the defendant company. Although the defendant company resisted our attempts to gain the OSHA records, our awareness of their past issues with OSHA was enough to make them nervous about going to court.  This, along with visits to the warehouse facility where the beams were loaded and the retention of multiple experts in steel warehouse safety and inspections, allowed us to settle for $7,000,000 on our client’s behalf.

How Does an Attorney Gain Access to Information in Discovery?

There are a number of ways that an attorney can get information during the discovery phase.

• An attorney may serve a subpoena for a necessary document, or for a witness who might refuse to come to court otherwise. It should be noted that a subpoena only applies to witnesses with actual involvement in the case, i.e. witnesses to the event itself or persons working at the company where the incident took place. You cannot subpoena an expert witness.
• FOIA (Freedom of Information Act) and FOIL (Freedom of Information Law) requests give attorneys access to government information. FOIA requests help to access federal government agency records, while a FOIL request grants access to state records.
• If a defendant denies knowledge of basic information—such as whether he or she owned a vehicle or a property—your attorney may serve a notice to admit. This gives the party 20 days to respond to the allegation.

Having the right to pursue results with these methods is not the same as having the ability to use them effectively. It is critical to seek out an attorney with experience in seeing the methods through.

The defense may use diversionary tactics such as delaying responses for long periods of time, sending vague information that does not fully answer the questions you have (for example, sending along incomplete insurance information that does not give an idea of excess coverage), or even passing along too much information, forcing attorneys to use up more time than necessary trying to find a single necessary paragraph in a pile of paperwork. An experienced attorney will understand when this is happening, how to push for a better response, and when to file a motion to compel discovery, which will help you to resolve the delay in court if worse comes to worse.

A skilled attorney also should know how to find the right witnesses. Block O’Toole & Murphy attorneys once tried a childhood sexual abuse case that was brought under the New York Child Victims Act. Because the acts being alleged had occurred over 40 years previously, finding witnesses to corroborate our client’s story proved challenging. After speaking to many people, however, our attorneys found three separate witnesses who were able to corroborate our client’s story. Because of those three witnesses, our attorneys were able to persuade a jury to return a verdict for $30,000,000.

How Should I Handle the Discovery Phase as a Client?

Having an attorney you can trust becomes paramount during the discovery phase, when total honesty between attorney and client is a necessity. As a client, it is important to bear in mind that your attorney has a legal perspective that you do not. Many personal injury clients hesitate to reveal critical information to their attorneys because they are convinced that the truth would hurt their cases. For example, they might be tempted to conceal the fact that they have returned to work.

If you’re in this situation, you should know that only an experienced legal professional can say for certain whether such information is detrimental to the case or not. Even if the truth is harmful to your case, knowing the full story gives your attorney the power to fortify your case against problems that may arise because of it. For example, Block O’Toole & Murphy was able to recover $500,000 in damages for a client who was hit by a bus while walking across the street backwards as he attempted to get a sense of where he was. This settlement was possible because we were honest about our client’s share of negligence from the start, and that honesty enabled us to make a successful case for negligence on the part of the driver.

Conversely, you may be surprised about what could hurt your case during discovery. Suppose, for example, your attorney asks you whether you have social media accounts, then advises you, sight unseen, to take them down. You are only a casual user of Instagram and Facebook, which you largely use to keep in touch with family members, and your injury case is a very straightforward one: you were entirely truthful and did not exaggerate your suffering in any way. You have nothing to hide, and you have no reason to think that anything you post would be detrimental to your case.

Feeling that your attorney’s advice does not apply in your situation, you may be inclined to leave the accounts up. However, social media tends, by nature, to be a highlight reel. Suppose your leg was severely injured, making it painful to walk. You travel to attend your daughter’s college graduation. You may post a picture of a happy moment you particularly want to share with friends and family: you and your daughter smiling proudly together as she holds her diploma. This picture won’t show the extra effort you made to navigate your daughter’s campus because of your injury. No one looking at the picture would realize that, immediately after it was taken, you went back to your hotel room to apply ice to your knee, skipping a celebratory dinner with the rest of your family so that you could recover.

Your injury did not prevent you from feeling—and showing—happiness because of your daughter’s success, just as that happiness could not keep you from experiencing the continued pain of the injury. This won’t matter to the defense. If their attorneys present that picture as evidence that you were not suffering when you claimed to be injured, it can hurt your case.

If you’re lucky, this may be the only personal injury case you have ever experienced. An experienced attorney has seen many instances of how a completely innocuous action can hold a person back when pursuing damages. So what may appear to be “one size fits all” advice may, in fact, have more relevance to your situation than you think.

Transparency is Critical

During discovery, each of the parties in a case is permitted, even encouraged, to ask the other side to put all its cards on the table. Understandably, this idea can be disquieting for the most self-assured of clients. Even people who have nothing to hide want—and are entitled to—privacy in the course of their ordinary lives. Being involved in a legal case may feel like a rude interruption to that expectation.

The key to a good discovery phase is retaining an attorney you can trust with your information, making complete transparency possible during the process. A trustworthy attorney will treat you and your information with respect and will reward your confidence by being straightforward about the progress of your case.

The experienced personal injury attorneys at Block O’Toole & Murphy handle cases throughout New Jersey and New York. Contact Block O’Toole & Murphy to receive a free legal consultation by calling 212-736-5300, or by filling out our online contact form.