After your attorney conducts his or her initial investigation and files a lawsuit on your behalf, what happens next? Most likely, the first thing that will happen is the other side - the defendant or defendants - will file an “Answer.” This is a formal document filed with the court that, in almost every case, denies the claims made in the lawsuit.
Either along with their answer or soon after they file it, the defendant will serve “written discovery requests” on your attorney. These written requests come in the form of “interrogatories,” “requests for production of documents and things,” and “requests for admissions.” When your attorney receives these requests, he will either send them to you and ask you to write out answers, or will make an appointment for you to meet with him or a member of his staff and answer them in his office. It is important to understand that, when the answers are put together, you will be signing a document called a “verification,” in which you will be swearing, under oath, that your answers are true and correct to the best of your knowledge, information, and belief. This is an oath, in every sense as much as the one you may eventually take when you are sworn in to testify at trial. Therefore, it is paramount to tell the truth. There are several reasons why your answers must be true.
Not every question a defendant poses in discovery must be answered, however. If there is information the defense tries to obtain that is not “reasonably calculated to lead to the discovery of admissible evidence,” your attorney will make a formal objection to that question. For instance, in a civil proceeding, evidence of criminal convictions which occurred more than ten years ago is inadmissible. Therefore, if the defense’s discovery requests ask whether you have ever had a criminal conviction, and you were convicted of a crime more than ten years before, your attorney should object to answering about that conviction. As another example, a defendant might ask for your tax returns for the past twenty years. For most people, obtaining tax returns that old would be quite a difficult task. In that situation, your attorney should object to the question as being “overly burdensome.” Why are your answers to discovery requests important? Aside from your petition (the document your lawyer files to start your lawsuit), your responses to discovery are the first impression the defendant’s lawyer gets of your case. While it is possible for a case to settle with only written discovery having taken place, your answers set the tone for how the case is going to proceed. Discovery requests go both ways. Not only will the defendant’s attorney send requests to your lawyer, your lawyer will also send requests to the defendant’s. Just as you have to answer the questions asked, under oath, the defendant must do the same. This is another reason it is important to have a qualified attorney representing you - he or she will know what kind of questions to ask and how to ask them. Let’s take a look at each type of discovery request in turn. Interrogatories First, there are interrogatories. Interrogatories are questions that have to be answered separately, in writing, and under oath, within thirty days after they have been sent to your lawyer. Most sets of interrogatories will include, at least, questions about who you may call as a witness at trial, what they know, and how to contact them; and, questions about what evidence you may use at trial. In cases that deal with an injury claim, there are likely to be questions about your past medical history and treatment. If your case deals with your employment, your work history will probably be the subject of an interrogatory. A defendant might ask about your criminal record, any other lawsuits of which you’ve been a part, or anything else that defense counsel thinks he or she needs to know in order to represent the defendant well. When you first receive the defendant’s interrogatories, they will probably seem daunting, even overwhelming. It is important to take each question one at a time and answer as well and thoroughly as you can. Your lawyer will decide what information should be protected, what objections should be made, and how best to phrase your answers. Requests for Production The second type of written discovery request is a “request for production of documents and things.” This is exactly what it sounds like. It is a set of written requests for you to produce certain items, such as your medical records, witness statements, and reports from any experts your lawyer may have called in to help with your case. In some cases, other types of records or documents may be requested. Sometimes, other “things” besides documents are part of a request for production. For instance, in a products liability case, if a person has sued because she was injured by a defective product, the offending product may be requested for examination. Usually, requests for production are satisfied by sending copies of all of the requested documents to the defendant’s lawyer. Sometimes, though, there are documents or things that cannot be easily copied and sent - like when there are hundreds or thousands of pages of records, or when a tangible object is the subject of a request. In those situations, the defendant’s lawyer or a member of her staff may visit your attorney’s office and inspect or examine the items. ESI, or electronically stored information, is sometimes the subject of a request for production. There are special laws that control the preservation and production of ESI. ESI includes emails, texts, Word documents, spreadsheets, social media posts, histories of your web searches, trails of what you read online and when, Amazon Alexa or Google Home data on what you used the device to do, and more. In today’s world, defendants can and will use your ESI to try to defeat your claim. If you have made a claim that you have an injury that causes you not to be able to do some things, then make a Facebook or Instagram post in which you are doing those very things, the defendant’s attorney may use those posts to discredit you. One man who claimed to have a disabling back injury made a social media post of a video in which he bungee jumped. A woman who claimed she never drank alcohol posted a picture of herself and her friends with beers in their hands. Even if your social media profiles are “private” and your posts are not visible to the public, your profile(s) may be the subject of a request for production. Even if your attorney objects to the production of access to the accounts, a judge may order you to produce them. For these reasons, it is very important that you not post anything pertaining to your case in any way. Requests for Admissions The third and final kind of written discovery request is the “request for admissions.” These are carefully worded questions that ask you to admit or deny certain facts. If these are not denied in time, you may be deemed to have admitted them, even if you never answered. It is important to have your attorney work with you on answering the requests for admissions, because the questions may be phrased in a way that is meant to trick you into making a false statement. If the discovery requests the defendant sends include requests for admissions, be honest with your attorney in discussing the questions, and let him or her decide how best to answer. Remember, you are not the only party to the lawsuit who will have to answer discovery requests. Yes, it may seem like a lot of information to produce. It may seem overwhelming or even impossible to answer thoroughly. But your lawyer will have the same opportunity to pose questions to the defendant. This give-and-take of information is what drives lawsuits, and it is what determines what evidence will be used at trial if your case does not settle. |
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship.
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