January 29, 2022

What is Discovery?

When an accident happens, the first thing parties should do in a personal injury claim is to investigate. Then, engage an experienced Chicago personal injury attorney who knows about discovery. Discovery is not a substitute for investigation. Without proof, an accident plaintiff will not have enough to get to trial.

In investigation, the plaintiff needs to look over the accident scene, and talk to witnesses. Once investigation is complete, the plaintiff can hand over the data to the attorney for discovery to begin. Discovery translates facts into admissible evidence during trial. An injury plaintiff who understands discovery knows the tricks a defendant may use to dismiss a case.

In a Complaint, a plaintiff seeks admissions by the defendant. The defendant’s Answer will provide some hints on discovery, but the defendant who pleads every possible defense may confuse the plaintiff into thinking the Answer is boilerplate. This leads the plaintiff to overlook the defenses. Then the defendant moves for entry of default or dismissal because the affirmative defenses were not contested. To combat this trick, the plaintiff should reply to affirmative defenses and move to strike those that do not apply. This protects the plaintiff from inapplicable defenses and gets rid of non-issues early.

Another defendant trick is to make a motion to dismiss when the plaintiff does not answer the defendant’s interrogatories submitted at the same time as the Answer. To combat this trick, serve interrogatories with the Complaint or as soon as the rules of civil procedure allow. This makes the defense answer discovery first so the plaintiff gets a leg up on the facts.

Requests for admissions ask a party to admit to whether a statement is true or false. When the defendant responds to requests for admissions in a personal injury case, the defendant may provide long responses that do not answer the questions. To get rid of this, file a motion to deem the admitted the facts the plaintiff wants because responses that do not answer the questions usually do not follow the rules of civil procedure.

Sometimes the defendant does not believe the plaintiff is really injured and makes the plaintiff go to an independent medical exam. This is when the defendant pays for a doctor to examine the plaintiff in the body part claimed to be hurt. The doctor may demean the treating doctor in the medical report like saying the treatment was not necessary or not attributed to the accident. The plaintiff should have someone taking notes at the doctor session to observe what actually takes place. Also, send the medical report to the treating physician. Doctors who insult other doctors will find out they will not have long lasting careers by insulting other doctors.

In a personal injury case, trial makes up perhaps 10% of the game. Trial starts with investigation and then discovery. To navigate through a personal injury action with confidence, engage an experienced Chicago personal injury lawyer.

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