Discovery

Let’s assume that you have selected an attorney.

you have signed a contingent fee contract.

the liability in your case is reasonably clear.

the damages have been documented and sent to the insurance adjuster for evaluation.

your attorney corresponds with the insurance representative & suggests mediation.

the insurance adjuster says “No.”

your attorney as a result commences the lawsuit.

now what happens?

Discovery. a legal term that means in laymen’s language the right of each side, according to court rules has a right to request and obtain information from the other side.

the usual tools of discovery are some of the following:\

1. interrogatories-a list of written questions to find out all the factual information the other side knows, e.g., how the accident happened, names and addresses of witnesses, medical records, medical bills, and insurance coverage, etc.

2. depositions: oral testimony recorded by a professional stenographer and testified under oath. it is similar to trial testimony but takes place in an attorney’s office. This is an opportunity to find out what the witnesses know, don’t know, and may be guessing. A transcript is prepared for each side and the deposition transcripts are what holds the testimony of witnesses at trial to what they said in their deposition. If a witness testifies at trial in contradiction to his deposition testimony then the deposition transcripot can be used to “impeach” , that is , undermine the witness’ credibility for telling the truth. “So, Mr. Witness, when were you telling the truth / When you were deposed or now here in this courtroom in front of the jury. Let me read to you what you said  at your deposition,do you agree that what you said then contradicts what you are saying now. do you remember swearing an oath to tell the truth at the deposition/

Do you remember taking the same oath to tell the truth in the courtroom.

the truth is you are lying and are not very good at it.”

All the key witnesses must be deposed; factual witnesses, medical doctors, other healthcare providers, opposing witnesses including all defendants and their or its employees and scientific and technical experts.

sometimes the witnesses are out-of-state and the attorneys must travel to the witnesses domicile and make specific arrangements for these people to be deposed and recorded by a stenographer available in the city where the witnesses live or work.   Discovery becomes a significant part of the expenses in the case’s preparation.

by Arthur F. Licata,

contact him at www.alicata.com

or e-mail at arthur@alicata.com

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