Legal Evidence
The Discovery Process
Once a claim is made or a lawsuit is filed, the information gathering process is started. This is called “discovery” in the legal field.
Often times a thorough serious injury attorney will have started if not completed his/her information gathering before a claim is made, but once a claim is made or lawsuit is filed, the insurance company or opposing party then has the right to request and obtain information relevant to the claim from the claimant.
The Legal Process of "Discovery"
The discovery process is best described as being divided into two separate, but yet related types of discovery; “informal” and “formal” discovery.
Informal Discovery
The majority of “informal” discovery is conducted at the early stages of any claim before a lawsuit has been filed. The majority of the time, this discovery is conducted by insurance companies and the insurance adjuster. Insurance companies will routinely request that the person making the claim sign waivers and releases of information for past and current medical records as well as provide recorded statements to insurance companies in “an effort to settle the claim early.”
During this stage, it is extremely important to consult with a qualified attorney prior to signing any documents or providing any recorded statements. The information provided through this process can and will be used if the case proceeds to formal litigation.
Formal Discovery
“Formal” discovery is conducted following the filing of a lawsuit in district court. There are three primary methods of “formal” discovery.
1. Interrogatories
Interrogatories are written questions to the opposing party that must be answered under oath. There are limitations on what can be asked and what must be answered, but generally speaking, so long as the questions could result in discoverable information that could be relevant to the proceeding, the party is entitled to require that the questions be answered. Both plaintiffs and defendants use the Interrogatory process. Honesty is very important in the interrogatory process.
2. Request for Production of Documents
This discovery tool is a written request that the opposing party produce various documents that are reasonably anticipated to lead to discovery of relevant evidence in a case. Parties in a serious injury car accident will often request police reports, maps drawings and diagrams, medical records associated with the accident, medical records relevant to any prior injuries, video recordings or any other physical items that may be relevant to the case.
Again, the discovery rules in Iowa are fairly broad and so long as the requested items could arguably lead to the discovery of relevant evidence, the opposing party must produce those documents.
3. Depositions
Depositions are statements taken of a party or witness after the person has first been placed under oath. At a deposition, the attorneys ask questions, the witness answers the questions and a court reporter types up everything that is said. A transcript is then produced so that everything that is asked and answered in the deposition is memorialized and can be used in future proceedings if necessary. This is quite often the last step in the discovery process before a serious settlement negotiation is begun. Once the parties have all the facts and have a better understanding of how the case will play out before a jury, they then are in the best position to negotiate settlement.
It is imperative to understand that cases are many times won and lost during the discovery phase. Thus, it is important to have an attorney that is prepared and who will likewise prepare his/her own client and witnesses to respond appropriately to the discovery process. This process is one of the more difficult and troubling portions of any litigation for the claimant or plaintiff. Not only does the individual have to suffer through the emotions or reliving the event, but many insurance companies and defense attorneys will routinely request information that we all deem to be very private or attempt to delve into matters not related to the actual case. Being prepared for the discovery process, knowing what will take place and what questions must be answered and what questions need not being answered, will alleviate much of the apprehension. For this reason it is important to have an attorney that is willing to protect the privacy and rights of their clients ensuring that only the information that is relevant to the case at hand is produced.
At gourley, Rehkemper & Lindholm, we do just that. We will be the help you need when you need it most.
