The discovery process can make you, as a plaintiff, feel like you are the one on trial. In a very real way, you are. When you file a personal injury lawsuit, you open yourself up to any questions and requests for documents and other items which are reasonably calculated to lead to admissible evidence. Note that I did not say that the question or production request must result in admissible evidence in and of itself. As long as the discovery request could reasonably lead to admissible evidence, you must comply with it. The “scope of discovery” is far more broad than the bounds of admissibility.
The purpose of allowing such a broad scope of discovery is to allow each side a full and fair opportunity to find all admissible evidence in a case prior to trial. Contrary to what movies and television shows may lead you to believe, civil discovery eliminates almost all surprises from trial. In a perfect world, each side in a civil lawsuit goes into trial knowing exactly what evidence (including testimony) will be presented by the other side. The only questions to be answered by the jury are those of credibility and interpretation of the evidence. Now that you know the basic scope and purpose of civil discovery, let’s explore the motives and aims of certain common discovery requests.
Don’t Take Standard Discovery Requests Personally
Like many lawyers, personal injury lawyers have many forms that they use in practically every case they handle. This is especially true of written discovery requests. The initial interrogatories (written questions from the opposing party which must be answered by you in writing under oath) and requests for production (written requests for documents and other tangible things in your possession) you receive are, in most cases, form questions which the defense lawyer has used in dozens, if not hundreds of cases. Most of these will not be tailored specifically to your case, so even though they may seem invasive and often burdensome, don’t take it personally.
Don’t get paranoid and assume that the defense lawyer thinks that you’re a tax cheat just because he asked for your tax records. Similarly, just because interrogatories may inquire about previous injuries, don’t assume that you’re missing something if you can’t recall ever having any. Not all discovery requests are designed to result in evidence which damages your case. The defense also needs to know about the evidence which helps your case, as he will need to prepare for it being used at trial. In other words, don’t drive yourself crazy trying to figure out the defense lawyer’s motives for each discovery request. Nine times out of ten, written discovery is generated by the lawyer telling his paralegal to prepare “the standard set of interrogatories and requests to produce.” It’s not as nefarious as you might think.
Why Did the Defense Attorney Ask Me for Years of Old Tax and Income Records?
If you’ve made a wage loss claim in your personal injury lawsuit, how much money you’ve made in the past is relevant to proving or disproving the amount to which you claim to be entitled. So, why is the defense asking for more than just last year’s tax records? Well, last year may have been an unusually good or bad year for you, and may not be indicative of how much you would make on average in the future. Multiple years of tax records give a more complete picture of your “future wage loss” claim. Was your income increasing or decreasing over the past few years? How drastically did your average income change after the accident? Did you work more than one job? Answers to these questions are are readily discernible from tax records of employees whose income is reported on a W-2 form.
For the self-employed, the request for tax records usually reveals a lot more. If you structured your business to minimize your taxable income, you may find your wage loss claim much harder to prove, as it requires explaining your business model, which a jury might not understand. Worse, if you took advantage of your self-employment status to cheat on your tax returns (usually by mischaracterizing income or claiming bogus deductions), you must now consider whether the risk of divulging the tax records to the defense lawyer outweighs the reward of keeping your wage loss claim (if you drop your wage loss claim, you can probably avoid having to turn over the records). If you did cheat on your taxes, you can take some comfort in the fact that in all my years of practicing, I’ve never heard of a tax cheating plaintiff being turned over to the IRS by a defense lawyer (and I have encountered numerous tax cheats). More likely, the defense will threaten to expose the tax evasion to the jury in order to get you to drop your wage loss claim. Always tell your lawyer if you anticipate a problem with your tax returns. You won’t be the first client he’s had that did it, and attorney-client privilege prevents him from telling anyone else about it.
The self-employed plaintiff’s tax returns will also reveal whether the plaintiff had to hire help or increase existing employees’ hours to compensate for his inability to perform his job. It will reflect whether the plaintiff’s reduction in income was due to an increase in the costs of the business, such as raw material costs or wholesale prices.
Requests for tax returns are clearly calculated to lead to admissible evidence in all cases in which a wage loss claim is made. More often than not, they will support your claim (assuming you told the truth about how much you earn). If they don’t, you should let your attorney know as soon as possible so you can discuss how to proceed.
Why Did the Defense Attorney Ask Me for the Names of Friends and Co-workers?
Questions about people who knew you since before your accident occurred most often come up in the plaintiff’s deposition. The motive for these questions is pretty obvious. These people, commonly referred to as “before and after witnesses,” can confirm or refute your claim as to how the accident has affected your life. They might also know of prior (or subsequent) injuries that you did not disclose. Plaintiffs worry about these questions, which usually include requests for phone numbers and addresses of these people, because they envision their friends and co-workers being harassed by the defense lawyer or a private investigator.
The likelihood of your friends and co-workers being contacted by the defense is directly related to the value of your claim. The more your claim is potentially worth, the more likely it is that these people will be contacted. Believe it or not, sometimes the defense attorney asks about your friends and co-workers without any intention of ever contacting them. Why would he do that? Because the mere threat of these people being called is enough to make most plaintiffs answer questions more honestly. As a precaution, you should let these people know that the defense may contact them, and make sure that they are up to speed on your condition and your claims.
Why Did the Defense Attorney Ask Me for the Names and/or Records of Doctors Whose Treatments are Unrelated to My Accident?
When you make a claim for personal injury, all of your medical records are discoverable. The defense is looking for pre-existing conditions, subsequent injuries, inconsistencies in your complaints from doctor to doctor and any statements you made to your doctors which might contradict your claims. If, before your accident, you treated for a chronic condition which caused pain, such as rheumatoid arthritis, that would be relevant to your accident claim because your baseline pain level would be higher than an average person’s. For example, if your accident-related injuries cause you to experience pain that ranks 5 out of 10 on the pain scale, a defense lawyer would want to know that your pre-accident pain level was 2 out of 10, and not 0 out of 10.
What about mental health records? If you are claiming emotional distress, also known as “loss of enjoyment of life” damages, prior mental health treatment is relevant because a certain degree of your emotional distress may have been pre-existing. If you absolutely do not want to produce your mental health records due to sensitive or embarrassing information contained therein, you will have to drop your emotional distress claim.
Note that emotional distress is not the same thing as “pain and suffering.” Pain and suffering refers purely to physical pain, which you should still be able to bring without having to disclose mental health records — although it should be noted that certain mental conditions can exacerbate physical pain. Even if you don’t have one of these conditions, the defense may be entitled to see your mental health records to verify this if you choose to maintain a claim for pain and suffering. If your mental health records show that you don’t have a condition which would affect your pain levels, they would not be admissible at trial. In this case, you’d need to decide whether you can live with the defense lawyer seeing your records (which he would not be able to disseminate) as long as the jury never sees them.
Why Did the Defense Attorney Ask Me for Any Photographs or Videos of Me for the Past Several Years?
A picture is worth a thousand words. One photograph or video of you doing something you claim to be incapable of doing can cripple your case, e.g., windsurfing or golfing after claiming that your accident caused you to suffer from crippling back pain. Also, if you claimed to have led an active lifestyle prior to the accident, a complete lack of photographic evidence may lead a jury to believe that you were really a couch potato. When responding to a request for photographs, be sure to include all photographs which you or your spouse have ever uploaded to Facebook or any other social networking site. Failure to produce all photographs can result in sanctions as severe as the dismissal of your lawsuit (especially if a damning photograph was omitted, making it appear that the failure to produce it was intentional).
Why Did the Defense Attorney Ask Me for Aliases, Prior Marriages, Former Addresses and Other Weird Stuff?
Some of the “standard interrogatories” I referenced at the beginning of this article may strike you as strange. You will likely have to answer questions such as:
- Have you ever gone by any other names? If yes, list all other names and/or aliases you have used and the years in which you used them.
- List all current and prior spouses and the years you were married to each.
- List all addresses at which you resided for the past 10 years
- List all people who have resided with you for a month or longer, starting from the 5 years preceding the accident through the date of answering these interrogatories.
Again, these questions were not designed specifically for you. They are standard questions that help the defense track down (if they choose to do so) all potential witnesses who have knowledge of your pre- and post-accident condition. Will a cousin who lived with you for 3 months 5 years prior to your accident have anything important to say? Probably not, but a friend who moved in with you shortly after the accident for 6 weeks might. A defense lawyer can only evaluate the potential evidentiary usefulness of a witness if he knows that the witness exists and may have had access to certain useful information.
Prior names you used (including maiden names and former married names) are useful to tracking down medical records and insurance claim records. The same is true for prior addresses, especially if those addresses are from different states. These types of questions may seem irrelevant or weird to you, but keep in mind that they may have resulted in extremely useful information in other cases, and there is no way for the defense to know how you will answer them without asking.
Concerned About a Specific Discovery Request Not Covered in This Article?
If you’ve received a discovery request not covered in this article and you can’t figure out why the defense sent it to you, feel free to leave a comment after this article which includes the specific request (verbatim would be most useful) and I’ll see if I can explain the motive for the request to you. I moderate comments on this site (due to infernal spambots), so even though your comment won’t immediately appear, rest assured that I’ll approve it and it will post, usually within a few hours (often quicker), and concurrently with my response.