Pretrial discovery, commonly known by its short form “discovery,” is a court-enforced process of gathering evidence for a pending court action, such as a lawsuit. During the discovery process, each party demands evidence that is in the possession of the other party.
The evidence that surfaces during the discovery process might include information, testimony, and physical evidence. The discovery process often yields enough evidence to allow the parties to reach an out-of-court settlement.
The Four Legal Weapons of Pretrial Discovery
The pretrial discovery process offers the parties four main legal weapons: depositions, interrogatories, requests for production, and requests for admissions.
In a deposition, you cross-examine a witness from the opposing party under oath. This cross-examination does not take place in court. Typically, it takes place in a conference room in a law office. Although a court reporter will record the proceedings, the judge is not usually present. This means there is nobody to rule on any objections raised by a party.
Depositions allow a party to know in advance what testimony a witness will offer. If the witness gives testimony in court that contradicts their deposition testimony, the opposing party can use the discrepancy to discredit the witness.
Interrogatories are written questions the recipient must answer, under oath and in writing, by a certain deadline (typically 30 days). The answers to the questions do not have to be within the answering party’s personal knowledge.
Requests for Production
A request for production is a demand for the production of documents or physical evidence for the inspection of the party that issued the demand. It might even include a demand for an independent medical examination of the injuries of a personal injury victim.
Requests for Admissions
A request for admission is a request that the receiving party either admit or deny a certain statement made by the issuing party. For example, a defendant might ask the plaintiff to admit or deny the authenticity of the plaintiff’s signature on a waiver of liability. These requests help simplify the case for both sides.
One of the advantages of participating in pretrial discovery is the ability to petition the court to compel an uncooperative party to produce evidence. This power is lacking in private negotiations, which prompts many claimants to file lawsuits for the sole purpose of gaining access to the court-supervised pretrial discovery procedure. Following is a brief description of the court enforcement process.
Motions To Compel
A witness under deposition might refuse to answer a question. The opposing party might refuse to answer an interrogatory, or they might refuse to grant the other side access to evidence.
In that case, the offended party might petition the court for enforcement.
To take action against an uncooperative opposing party, you must file a Motion to Compel with the court. If the court sympathizes with your complaint, it can order the uncooperative party to comply with your request, and it can impose various sanctions against the other side if it refuses to comply.
In response to a Motion to Compel, a court can order an uncooperative party to comply with the aggrieved party’s discovery request. If the uncooperative party fails to respond, the court might take the following punitive measures:
- Rule in favor of the aggrieved party with respect to the issue that motivated the discovery request;
- Refuse to allow the uncooperative party to support or oppose the claim or defense at issue with respect to the discovery request;
- Dismiss the lawsuit or issue a default judgment in favor of the aggrieved party; or
- Charge the uncooperative party with contempt of court.
Just as either party can demand evidence from the other party, either party can seek sanctions against the other party.
How Pretrial Discovery Can Lead to a Settlement
Complex cases such as medical malpractice claims require a lot of complex evidence, typically including expert witness testimony. Before the discovery process takes place, it is typical for neither party to hold enough evidence to inspire great confidence.
Since the discovery process often generates a lot of evidence, it is likely to drastically adjust the parties’ bargaining positions. Settlement occurs when both parties are satisfied that they understand the story that the evidence is telling them and prefer to conclude the case rather than proceed to trial.
Hire a Tampa Personal Injury Lawyer Before You File a Lawsuit
Filing a lawsuit involves the creation of documents that require no small amount of legal knowledge. Every sentence in a lawsuit complaint or answer has consequences for better or for worse.
However, you must file a lawsuit before you can even access the discovery process. Filing a lawsuit and engaging in discovery are complex undertakings. Your best bet is to hire an experienced Tampa personal injury lawyer to guide you through the litigation process. Winters & Yonker Personal Injury Lawyers will help gather evidence for pending court action to reach an out-of-court settlement. Contact us online or call us at (813) 223-6200 today for a free consultation.