Practically every person who has found himself involved in civil litigation has encountered the often-cumbersome discovery process. Although time-consuming and frequently frustrating, discovery is a necessary evil for the practicing trial attorney, and for his or her clients. Without thorough discovery, the trial attorney lacks the necessary tools and information to properly represent his client, whether it be in settlement negotiations or at trial.
As a practical matter, the discovery process can be separated into two categories: written discovery and oral discovery. Written discovery generally involves the exchange of sets of written questions and requests for documents, photos, videos or physical evidence from the opponent. Written discovery can also include written requests that the opponent admit certain undisputed facts related to the subject matter of the litigation. There are so-called “standard interrogatories” used for certain types of personal injury claims, but attorneys typically modify their questions and requests in both significant and minor ways. Illinois Supreme Court rules require that each party respond to written discovery requests in a timely manner.
Written discovery typically serves as the basis for the next phase of the litigation process: oral discovery. Oral discovery, or depositions, involves the taking of sworn testimony from individuals who have, or may have, information relating to the subject matter of the litigation. The questions and answers in a deposition are taken down by a court reporter, who will produce a written transcript upon the request of either party. Generally, the first depositions taken are those of the parties, followed by the depositions of fact witnesses—the people who observed the incident or the events leading up to and/or following the incident at issue in the case. Once fact witnesses are deposed, treating physicians and others involved in the medical treatment of the plaintiff are usually deposed, as well. Finally, if either party intends to utilize expert testimony at trial, the depositions of those experts will also be taken.
The discovery process, and the amount of time the process takes, can be frustrating, but it is an extremely important part of any litigation. It is the mechanism by which the courts eliminate the possibility of the presentation of surprise witnesses or evidence at trial, and allows the parties to properly prepare and present the best case for their clients to the judge or the jury. When done properly, the discovery process also provides opposing parties with a common set of facts to rely upon when negotiating the possibility of settlement, giving them the best chance to reach a reasonable agreement. Either way, whether by trial or by settlement, the discovery process allows for the greatest chance of a just result.
Thomas Polacek practices in the area of personal injury for McNamara Phelan McSteen, LLC. He has tried numerous civil and criminal cases before juries in Illinois and Missouri, as well as in Federal District Court. He has been a successful trial attorney for over 20 years, and he prides himself on keeping his clients well-informed throughout the litigation process.
MPM encourages anyone who has been injured through another’s negligence to contact Tom for a free consultation as soon as possible so that he may review your case and provide you with the proper direction to proceed with your claims.