What is Discovery?

Understanding your lawsuit's discovery phase

If you recently filed a lawsuit, then you likely have questions about how your case will progress. Clients often ask our attorneys about discovery. In fact, most civil plaintiffs and defendants have never heard of the discovery phase of a trial. They have no idea what discovery is. As such, our award-winning personal injury team is here to explain discovery and what you can expect during this phase of litigation.

According to the American Bar Association, discovery is “the formal process of exchanging information between the parties about the witnesses and evidence they'll present at trial.” In other words, it is a mechanism for obtaining the info and evidence that you need to win your case.

The phases of a civil trial

In order to fully understand the discovery phase, an overview of the full timeline of a civil trial is helpful. However, remember that every lawsuit is different and that over 97% of civil cases settle before trial. Similarly, different states and the federal government all have different laws governing trials. As a result, parts of your case may proceed differently. Likewise, you may decide to settle your case at any point. That being said, most cases proceed through the following phases of litigation.

The pleadings

Pleadings are a case's first court-filed documents. In short, they are what gets the case started. Pleadings introduce the issues, allegations, and defenses to both the parties and the court.

A “complaint,” which the plaintiff files, is the very first pleading. It sets out the plaintiff's version of the facts and law forming the basis of the legal claims. In most jurisdictions, the defendant has a few choices about how to respond. One option is to respond by refuting or admitting each fact and point of law in a pleading called an “answer.” Another option is to file a pleading asking the court to dismiss the case because the plaintiff made some sort of error in the way the case was initiated. These problems are usually technical in nature. For example, a defendant may assert that the plaintiff filed the case in the wrong court. Different legal systems call this pleading by different names. In Pennsylvania, courts refer to this as a preliminary objection or a “demurrer.” In federal court, it is a motion to dismiss.

Scheduling conferences and discovery

Cases that survive the pleadings phase move on to scheduling conferences and the discovery phase. Each state and the federal government set different rules regarding the timing of the scheduling conference. However, the basic idea is always the same. The conference is a chance for the parties to meet with the judge and nail down a schedule for how the rest of the case will proceed. While these schedules often change, this gives everyone a timeline to work with and ensures that all parties and the court are on the same page.

The discovery phase follows and parties begin exchanging information. This can last weeks, months, or even years in some big, complex civil cases.

Pre-trial motions

Towards the end of discovery, different parties typically file various motions depending on the information they obtained their litigation goals. One of the most common motions is a motion for summary judgment. Either party may file a summary judgment motion. These motions may resolve the case entirely, narrow down the issues, or resolve some but not all of the claims.

If all or some of a case survives summary judgment (i.e. the judge does not throw out the whole case), then parties begin filing motions in preparation of trial. These motions hash out details like who may testify as an expert witness and how issues and evidence may be presented to the jury.

The pre-trial phase is one of the most common stages for settlement negotiations.

Trial

The civil trial is the phase that people are most familiar with. During a jury trial, the parties chose a jury, present opening arguments, direct and cross-examine witnesses, introduce evidence, and make closing arguments. The judge decides the law and the jury decides the facts of the case. In a bench trial, everything is the same except that a judge–not a jury–decides both the law and the facts. At the end of a trial, the judge or the jury renders a verdict.

Post-trial motions

After the verdict, many cases are not over. The losing party often files “post-trial motions” and appeals to challenge something about the litigation while the winning party takes steps to collect the judgment.

Types of discovery

Evidence and information come in lots of different forms. As a result, discovery does too. As a note, in some jurisdictions, parties are required by law to turn over certain information and documents to the other side automatically. For example, in the federal court system, parties must send their insurance agreements and computation of damages to the other side without being asked. In states that do not have these mandatory disclosure laws or for all other information, parties must request or illicit evidence using the tools of discovery. These are the main types.

Depositions

Depositions are like interviews of witnesses and parties that are administered under oath. A deposition usually takes place in a conference room at one of the parties' lawyer's offices or some other neutral space. The people being deposed (the deponent) (and his or her lawyer, if the deponent chooses) attends, as do the parties, their lawyers, and a court reporter who will make a written transcript of the deposition. The judge does not come. During a deposition, one of the lawyers will ask the witness or opposing party questions that the deponent must answer truthfully. Depositions are a great opportunity for lawyers on both sides to get information beyond just the facts of what the witness says happened. Lawyers can assess how truthful, likable, and credible each witness is, and make strategic decisions accordingly.

Interrogatories

Interrogatories are like written questionnaires that a party or witness must answer. Different states set different laws about how many interrogatories may be sent out and how many questions may be asked.

Requests for production

Another way to obtain information is by requesting that an opposing party produce documents or things. However, litigants cannot request anything and everything they might want. They must explain why the want a particular document or object, and in particular, its relevance to the lawsuit's claims or defenses.

Examinations

In certain types of cases, the mental or physical condition of a party may be a central issue in the lawsuit. In such instances, an opposing party may be able to get a doctor to examine the other party and produce a report. However, courts generally limit this method of discovery. Exams are a tool that litigants should use only when there is no other way to get the information.

Requests for admissions

Finally, parties can request that their adversaries admit the truth of a fact or the authenticity of a piece of evidence. When litigants do not dispute some aspect of a case, this can be an efficient way to streamline the case. However, parties cannot request that their opponents make admissions about the law. Courts limit requests for admission to factual statements only.

Let the nation's #1 personal injury law firm handle discovery and win big in your case

Getting the information and evidence you need to win your case using the discovery tools in your jurisdiction can be complicated. Don't go at it alone. Who you hire to represent you matters. The nation's leading accident lawyers at Munley Law Personal Injury Attorneys win trials–and millions–for victims in courthouses across the country. We identify precisely what you need to win and how to get it. Don't just take our word for it. See what our clients say about what it's like to have an experienced litigator from Munley Law Personal Injury Attorneys in your corner. If you're ready to discuss a winning strategy for your case, schedule your free consultation today.