Personal Injury Discovery: Depositions, Interrogatories, and Demands for Production

In a personal injury case, the evidence for trial is surfaced during the discovery process.

When a person is injured, whether in a truck accident or on the job, the validity of any personal injury or workers' compensation claim and the amount of money damages will depend on the particular facts in the particular case. How are the facts determined? The facts are ferreted out through the stage of the civil litigation process known as "discovery." Discovery involves what are known as "discovery devices" including, most commonly, depositions, interrogatories, and demands for production.

The actual litigation process does not involve, as legal cases in fiction often do, surprise twists during trial. Real-life lawyers, on both sides of a case, plaintiff and defendant (or more often the defendant's insurance carrier), will strive to know everything they can about a case before it goes to trial. Even when neither party expects to go to trial, as is often the case these days, parties will want to know as much as they can, within reason, to know what terms to settle to or what amount to settle for.

Depositions are the discovery device that will most directly involve the personal injury plaintiff. Depositions are essentially question and answer sessions that are recorded by a court reporter as text. Depositions are an opportunity for attorneys to get the sworn testimony of an opposing witness before trial. After the deposition testimony is recorded, the witness is essentially bound from changing his or her testimony because the deposition testimony can be used to rebut any changes they might want to make later. This certainty of how the testimony would play out at trial, a sense that the witness must either testify the same way at trial or make a fool of him- or herself, provides a more solid sense of how a case would play out at trial.

The reason personal injury plaintiffs will become familiar with depositions is that the personal injury plaintiff can almost always expect to have his or her deposition taken by the defendant. The viability of a personal injury claim and the value of that claim will depend at least partially on the content of the plaintiff's testimony and the way the plaintiff presents him- or herself. A plaintiff that presents a personable, genuine, and friendly persona could expect a larger award from a jury than a crotchety or disingenuous plaintiff. The deposition presents an opportunity for the defense lawyer to get an idea of how the plaintiff would present him- or herself in formal questioning, albeit not the jury courtroom setting.

The evidentiary rules in depositions are more relaxed than those governing an actual trial. Generally, even information that would be inadmissible at trial, whether as hearsay, irrelevant, or unduly prejudicial, will be disclosed at deposition.

Aside from depositions, two other common discovery devices are interrogatories and demands for production. Interrogatories are questions that are sent to the opposing party as a part of the discovery process that the opposing party must answer. If the opposing party does not answer an interrogatory, they face a variety of discovery sanctions from the court in which the case is pending. Demands for production are much like interrogatories in that they are sent from one party to the other party, and they must be answered, but they call for the production of documents or physical things. A plaintiff in a products liability case might demand production of quality control records, or a plaintiff in a hospital negligence case might demand the allegedly defective medical instrument used in a botched surgery.

Once all the key facts in a case are exposed through these discovery devices, there is a greater chance that both parties will see the facts the same way and will be able to settle. If not, both parties will have the information they need to diligently prepare for trial.

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