Legal advice on Evidence for personal injury cases
Welcome to Episode 7 of Plaintiff Prep. The Point of this video is to help you understand how discovery works and what to expect.
What is discovery?: Discovery is the formal investigation process of the lawsuit. Discovery occurs between the time your lawyer files the lawsuit and trial, and both sides have the opportunity to request whatever evidence the other side has. This evidence might include things like videos, pictures, documents, insurance policies, and really anything that could be used as evidence. There are 5 ways each side can obtain evidence from the opposing party: (1) Interrogatories; (2) Requests for Admissions or “RFAs”; (3) Requests for Production or “RFPs”; (4) Depositions; and (5) the Defense’s medical examination of the Plaintiff.
Interrogatories: What is an Interrogatory? Each state’s rules of civil procedure allow the parties to send interrogatories, which are written questions directed to the opposing party that must be answered under oath. The interrogatory will be used to identify the witnesses and insurance policies, as well as pictures, photographs, and other types of evidence. Interrogatories may only be sent to the parties to the lawsuit. They can’t be sent to witnesses or other third parties.
Typically, the party receiving the interrogatories has 30 days to respond, depending on the state rules of civil procedure. In Florida, plaintiffs and defendants are technically each limited to 30 interrogatories unless they file a motion requesting the judge to allow more than 30. Also, in Florida, the parties have 30 days to respond to interrogatories. However, if any interrogatories are served with the complaint, the defendant has 45 days to respond.
Request for Production: Whereas interrogatories are used to identify evidence. A request for production is used to get the opposing side to turn over evidence in its possession for the purpose of copying and examination. In some states, an RFP can be used to gain access to evidence that is in the possession of entities or people that are not parties to the lawsuit.
When one side receives a request for production, it has 30 days to respond, depending on the state rules of civil procedure. In Florida, there is no technical limit to how many RFPs you can serve to the other side. Additionally, just like with interrogatories, parties have 30 days to respond to a request for production and 45 days if the RFP is served with the complaint.
Request for Admissions: A request for admission is exactly what it sounds like: It’s a written request for the other side to admit a fact or a matter of law. Once admitted, neither party needs to prove the admitted matter of fact or law. Thus, RFAs save attorneys and courts a lot of time and money because they allow the parties to focus their efforts on the most critical issues in the case.
Florida limits the number of RFAs to 30, unless the judge allows more upon a motion by the requesting party. Additionally, just like with interrogatories and RFPs, the time to respond to RFAs is 30 days, or 45 days if the RFAs are served with the complaint.
Depositions: A deposition is where attorneys call upon the parties to the case and anyone with knowledge relevant to the case to appear before a court reporter and answer questions under oath. The lawyer asks questions relevant to the case, and the deposed party answers those questions. Attorneys may ask questions in depositions that they could not ask in the presence of a jury at trial. Your lawyer may object to a question and then advise you as to whether or not you should answer.
During the deposition, a court reporter creates a transcript of the testimony. When the deposition is over, the deposed person is given an opportunity to review and sign the transcript, which can later be used at trial. Sometimes, depending on the case, a party may conduct a videotaped deposition of a party or a witness. This videotaped deposition, or portions of it, may also be used at trial.
Medical Examination: When a plaintiff makes a claim for a physical or psychological injury, there are two different situations under which the plaintiff may be required to undergo a medical examination to verify those injuries. First, an insurance company may require the Plaintiff to undergo an examination before paying the Plaintiff’s medical bills. Second, the defendant’s attorney may request that the plaintiff be examined by a doctor during the discovery phase of litigation. In this situation, your attorney will work with the defense to pick a time and place for you to be examined by a doctor the defense chooses.
You should pay attention to everything that is said and done during the medical exam. Then, relay as much as you can remember to your attorney after the exam. For example, if the doctor expressed disdain for personal injury plaintiffs, you could potentially testify to this fact at trial, which could help your case.
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A party has an obligation to preserve evidence (not destroy or alter) when a person is injured or when litigation is possible.
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