Why Did the Defense Attorney Ask Me for That?

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.

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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.

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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.

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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.

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84 Responses to Why Did the Defense Attorney Ask Me for That?

  1. danny lanha says:

    Defence Attorney asking me to produce SS# should I refuse it?

    • fl_litig8r says:

      Your social security number could be relevant to a personal injury case for several reasons, especially if you are making a wage loss claim (so that they can confirm that the tax records you produce to support such a claim match the SS# you’ve provided).

      I understand your reluctance to disclosing your social security number, but I would suggest that you disclose it on the condition that the defendant stipulate to a protective order that states:

      • Your social security number will not be filed in any unsealed court documents, and
      • Your social security number will not be disclosed to any third parties and will only be used for purposes of the pending litigation.

      The defendant shouldn’t have any objection to such a stipulated order. Make sure the judge signs off on the order before disclosing the ss#. If you are in a jurisdiction where interrogatory answers are filed with the court (as opposed to just being served on the opposing party), you can agree to provide the number by a separate unfiled document.

      If you just refuse to provide the ss# outright, the court will likely require you to produce it (perhaps subject to a protective order as described above). The risk is that if the defendant files a Motion to Compel to bring your objection before the court, he can request that you pay his attorney’s fees for the time his lawyer spent compelling you to give him your ss# (which could be hundreds of dollars, and would be payable immediately regardless of the case outcome).

      To avoid unnecessary confrontation over this issue (and annoying the court with a discovery dispute, which they hate) and the risk of an attorney fee award for outright refusal, I think you requesting a stipulated protective order is the way to go.

  2. danny lanha says:

    Thank You. Dan

  3. Melessa says:

    My attorney was served with papers for me to attend a deposition and than dropped me as a client even though we have payment arrangemts in place.

    In the papers my ex husbands attorney is asking for emails from my son who is special needs attorney that are privledged and confidential

    Can she make me give them to her?

    She also requested communication from the school district from the name Melessa Wester which has not been my name for 10 yrs and it is information from 3 yrs ago

    Can she do that or can I state there is none that exsists since everything I sent to the schools was in my legal name of Melessa Green?

    • fl_litig8r says:

      I don’t practice any family law, so I can’t give you anything more than a speculative answer.

      First, I’m unclear about your question regarding the e-mails with your son. Did you mean that your son is an attorney, or just that he’s special needs? If he is an attorney, communications with him wouldn’t necessarily be privileged. That depends on whether these were purely personal communications or whether they were attorney-client communications. If he’s not an attorney, you’ll have to clarify what you meant about why these e-mails would be privileged.

      As to the school communications, you could specifically respond that there are no communications under the name Melessa Webster during the period requested. I don’t necessarily recommend this, because if this is brought before a judge (say, on a motion to compel), he may not view your nit picking kindly. Also, your ex’s lawyer will just send another request with the name corrected, so I don’t know that you gain much (aside from not having to give them over until after your depo).

  4. Kevin says:

    Can the defense request medical notes from doctors from more than 10 years before my accident? I live I pa and I was wondering if you could help me wIth this question
    Thank you

    • fl_litig8r says:

      Yes, he can. There is always the possibility of a pre-existing condition related to the accident for which you treated over 10 years ago. There is no time limit on how far back the defendant can go with your medical history. I’m assuming that you don’t have these, so if he asked you to produce them, you can just respond that you don’t have them. Then he’ll just subpoena them from the source(s).

  5. Kevin says:

    Since I will have to sign a release for my doctor to give the records can I tell the dr office not to send any docs that are older than 10 years old? The defense only asked for my doctors from the past 10 years and I don’t feel it necessary for them to have records from my childhood please advise And thank you for your previous response

    • fl_litig8r says:

      If the defense is only asking for records from the past 10 years, there a 99.999% chance that this will be all they ask for from the doctor’s office (this is to control their costs). However, if you take any steps that indicate you don’t want them looking at your records from more than 10 years ago (such as limiting the release to the past 10 years), there’s a 100% chance that they will subsequently ask for the older records.

      Discovery will allow them to get all of your medical records if they want them, regardless of your feelings. If you make it seem like you have something to hide in these older records, they will want them even more. If you do have something to hide, your best chance of keeping it secret is not drawing attention to it.

      Remember, discovery allows a party to request anything that might reasonably lead to admissible evidence. Medical records in an injury case will always meet this standard, regardless of age.

  6. danny lanha says:

    “requesting a stipulated protective order” is that mean to send this request to defendant Attorney and wait if Judge order or not to disclose my SS#?

    • fl_litig8r says:

      Before you answer the discovery request, you either call or write the defense attorney and ask if he will stipulate to a protective order regarding your SS#. If he will, tell him you will provide the SS# once the judge enters the order (which should be quickly, as it is stipulated). If the defense lawyer won’t stipulate, you file a Motion for a Protective Order asking for the same thing as you would in a stipulated one. In response to the discovery request, don’t provide the SS#; instead, just note that you object to producing the number without a protective order in place and have moved for such a protective order.

  7. danny lanha says:

    Thank You. How should I answer “tricky” question to describe in detail all actions taken by me to prevent the incident? It’s common sense I did not looking to be injured.

  8. danny lanha says:

    I send them demand for Stipulated Protective Order and the file “Motion for HIPAA qualified protective order and order to disclose protected health information”. I don’t understand their response, do you? Thanks Dan

    • fl_litig8r says:

      Well, without seeing the motion, I can’t say if this is exactly what you asked for. The title of the motion makes it seem like it is, as it sounds like they are asking the judge to enter a protective order to keep your medical information private under Federal HIPAA law and to order you to disclose the medical information after such a protective order is in place. Does the body of the motion provide that your medical records will be used only for purposes of litigation, will not be disclosed to third parties and will be filed under seal if the defendant needs to file them with the court?

      • danny lanha says:

        Can you believe that defendant attorney obtain somehow my SS# anyway regardless of my “Stipulated Protective Order” request and place it already on HIPAA forms ignoring that my request. Is that normal? I would send you whole motion but when I COPY it cannot let me PASTE on your site.

        • fl_litig8r says:

          The purpose of the protective order is not to prevent the defense attorney from getting your SS#, but rather to prevent it from being filed in open court (unsealed). There are any number of ways he could have gotten it already, such as public records (some public records offices don’t redact this information unless you specifically request it) or from medical or insurance records that he has already obtained. It’s not unusual for defendants to find ways to get this information (most of which are perfectly legal). Basically, the protective order you want now would prevent this case’s records (which are public) from becoming yet another source from which anyone can get your SS#.

          If you want me to see the motion, you could just get a free Dropbox account, put the file in your “Public” folder, and drop a link to it (Dropbox has an easy way to make links to files) in a comment (which I won’t post to the website, but I’ll see it). After I see it, you can delete the file from your Dropbox folder (though without the link, it’s near impossible for anyone else to find it anyway). I’ve used Dropbox for years. With the free version, you get at least 2GB of online storage, and it has a lot of other neat features.

  9. Brittany says:

    Whats it mean when my attorney says that they have met a resolution in my case and then a week later they send me a request for tax returns? Does that mean they are almost done or ?

    • fl_litig8r says:

      When most lawyers say that a case has “reached a resolution”, it means the case has settled. If your case has truly settled, I have no idea why your lawyer would need your tax returns. Obviously, at least part of it isn’t settled. Is this a personal injury case or something else?

  10. Laura says:

    Can I ask about a provision for a restraining order in a settlement. Im about to go though a settlement, but the manager involved claims that he got a threatening text. It’s not true, but they want the provision to be a part of the settlement. Don’t they need proof it’s ME sending threatening texts? I don’t want to go to jail over something I didn’t do?

    Any Advice?

    Laura

    • fl_litig8r says:

      It sounds like they want you to stipulate to the restraining order being entered as part of the settlement, which in theory would remove the need for them to provide proof of its necessity. Of course, whether a court would accept and enforce such an order is something about which I have doubts. I would advise against any term in a settlement agreement which, if violated, would possibly get you arrested.

      You may want to propose as an alternative a mutual private agreement that you and the manager would have to stay away from each other (however many feet may be reasonable), with a liquidated damages clause — and no admission that you or the manager threatened each other. The liquidated damages clause would provide that violation of this term of the agreement would require the violator to pay the other side a certain amount of money, say $500.00. So, instead of you getting arrested for violating a restraining order, you’d have to pay $500.00 to the defendant as part of the liquidated damages clause, which could be enforced through a breach of contract action (in small claims court).

      For this to work, the manager would have to sign the settlement agreement. You’d need it to be mutual to avoid the manager being able to force a violation by getting closer to you. If the agreement is mutual and he tries this, he risks the court finding that he committed the violation — so he’d wind up having to pay you instead. The mutuality just ensures that both sides play fair and stay away from each other.

      Of course, you could always tell them to shove their whole agreement and just go to trial.

      • Laura says:

        LOL!! The telling them to shove it idea has crossed my mind. I want to be through with them, turn the page, put a period on a situation that has taken it’s toll.

        This manager is going through personal strife and the alleged threat he allegedly received could have come from anywhere. Can I ask – would he have to prove that I violated the agreement before I was either fined or arrested? Such dirty tactics on this person’s part. I should note he followed me to a residence and waited for me the following morning outside, but never approached me. I complained about this behavior in my lawsuit, but never put a restraining order on him.

        Thanks in advance…

        • fl_litig8r says:

          This kind of duplicates my answer to your other comment. Just to make an extra point, I would strongly urge you not to agree to a retraining order which could result in your arrest. A liquidated damages clause, instead of the restraining order, would allow only for money damages, not arrest.

  11. Laura says:

    Can I ask – would a “liquid damages clause” include text messaging and “he” would have to prove if I violated anything, right??

    Thanks again….

    Laura

    • fl_litig8r says:

      First, it’s “liquidated”, not “liquid” (just so you sound like you know what you’re talking about). You could include whatever terms you want, so if you want to include “no text messaging”, have at it. Yes, even with a liquidated damages clause, the burden would be on the party seeking to enforce it to prove that a violation occurred.

      The point of a liquidated damages clause is just to avoid having to prove the amount of your damages from the breach of contract. You still need to prove the breach occurred.

  12. Susan says:

    In my medical malpractice case which happened in 02/09. And 6 months after the deposition, I received in the mail a legal demand letter that I had to sign off for all my doctors to release my possible STD information? Which I then had to have notaries sign, then sent back to defendants attorneys. I don’t have any STD’s! And years earlier I already signed and released all of my doctor’s records for them to comb through? I think my doctor who injured me in surgery should receive the same request! Was this done to me to make my feel intimated? Thank You, Susan

    • fl_litig8r says:

      Many standard medical releases won’t allow the release of certain STD information without a specific provision allowing for it (which usually needs to be initialed by the patient). It could be that your original medical releases were not sufficient to allow for the release of such information, and now the defense attorney is just making sure he didn’t miss anything.

      I wouldn’t be overly concerned about such a request. I doubt that it’s personal (they probably ask this of all plaintiffs), or meant to intimidate. Discovery allows defendants to ask for a broad array of medical information in an injury case, and questions about STDs are not out of bounds. Treat it as you would any other request for information about pre-existing conditions. It relates to your relative health before and after the injury, and in some cases, may affect your life expectancy (which is relevant to future damages). This is why they can ask this from you, but you can’t from the doctor (unless of course, your alleged injury was the doctor giving you an STD).

      Don’t read too much into it. It’s just a fishing expedition for information that may affect your damages.

      • Susan says:

        Thank you so much for answering my question. My trial date has been set out to 7/9/13, and I was injured on 2/23/09! My case is valued at 2.1 million, I have been told by my attorney it can take 15 years! What is the tipping point in dollars that the other side is willing to invest before it becomes too expensive for them to keep delaying? Someone is paying 3 attorneys a lot of money to avoid trial? Thank You, Susan

        • fl_litig8r says:

          15 years seems a bit excessive, even with appeals. However, with an injury date of 2/23/09, a trial date of next year seems about right for a med mal case. As to when it becomes too expensive to fight, that really depends on the facts of each case. Obviously, the higher the value of the case, the more they will be willing to spend to fight it. This is especially true if they are disputing liability.

          I had a case worth millions that took 7 years to resolve, including an appeal. The defendant disputed that the accident had caused a particularly severe nerve injury at the heart of our case. We had three failed mediations before trial and multiple delays due to new doctors and experts floating new opinions. We won a multimillion dollar judgment at trial and the defendant appealed. We had a brief mediation after the appeal was filed which failed quickly. We finally won on appeal and the defendant paid up.

          In that case, we had used a Florida procedure which allowed us to recover our attorneys fees if we exceeded an early settlement offer by 25%, which we did easily. So the defendant had to pay another $200,000 and change in attorney’s fees on top of the client’s judgment.

          My point is that with all that the defendant had to lose, it still chose to fight to the end. It could have settled years earlier and saved itself several million dollars. Sometimes, insurance companies don’t act in their own self-interest.

  13. Laura says:

    YAY!! I like that answer. I appreciated your assistance. I’m going to suggest that resolve. Yeah, I’m not going to go to jail over assumptions, and I can’t trust this person, but if they don’t go along with it I’m going to keep with the “shove it” answer! :)

    Thank you, again!

    Laura

  14. Susan says:

    Now my trial has been put out till 10/2013! almost 5 years since being injured? I have only spoken to my attorney once in 6 months for 15 minutes, so I know I am not a pushy client. I have learned more about my case from my lay witnesses than anyone else. This seems unprofessional to me, or is this normal? Even when I rarely speak to the paralegal, who I am very polite and respectful to, I just get vague responses. And the little information I do get is confusing, like the depositions will be 9/12, then 9/13? I may be wrong but considering I am the case that sometime, someone would want to speak to me. Thank You, Susan

    • fl_litig8r says:

      It’s pretty normal for lawyers only to talk to clients when they need to, such as when they need information or need to schedule something, like a deposition or mediation. After these things have occurred, it’s not unusual to have a rather long lull in the case while you wait for trial. During this time, the lawyer basically updates medical records and may occasionally have some depositions of medical providers. If settlement talks begin again, your lawyer will contact you to get your approval for offers.

      If your lawyer isn’t contacting you, it probably means that nothing big is going on in your case at the moment (your lawyer isn’t constantly working on every case he has — some will be more active than others at any given time, and yours will get its turn on the “front burner”). He assumes that if something new develops on your end (such as a new medical provider), you will contact him to keep him informed. I know it’s frustrating to play the waiting game. It’s frustrating for your lawyer as well. Unfortunately, it’s not unusual to have long periods of limited activity due to scheduling issues. As your trial is well over a year away, your lawyer isn’t going to have much to do on it for quite some time, unless settlement possibilities arise.

      • Susan says:

        Thank you very much for helping me understand this process. There needs to be a client rule book or something that helps people understand what’s going on with for me at least, the most important thing that has ever happened in my life. Susan

  15. Susan says:

    Why am I supposed to protect the doctor who committed malpractice on me by my not being allowed either before or after resolution of my case to mention who she is or what she did to me? Isn’t that my right to free speech? And why can she talk about me to other doctors who now will not see me to help me get better? Why the double standard? Why are doctors better than the rest of us? I want to tell everyone I can about her so they can protect themselves from being hurt like I was. Thank You

    • fl_litig8r says:

      Don’t go waiving the “free speech” flag unless it’s the government who is restricting your right to speak. The Constitution only protects you from governmental restriction on free speech. If a private party is not allowing you to speak (such as a website) or you agree not to speak as part of of confidentiality agreement, that is perfectly legal.

      If you want to go out and badmouth the doctor on your own website or wherever, you can. Of course, if you do it before your case is over, you’ll probably face a counterclaim for libel, which will muddy up your lawsuit and cost you should you lose (as an aside, libel is not protected even under the First Amendment). Not to mention that everything you write could be used against you in your lawsuit, so if you say something which is inconsistent with what you’ve said during the lawsuit, it could really hurt your case. In other words, it’s just a bad idea strategically.

      If you badmouth the doctor after settlement and you signed a confidentiality agreement prohibiting it, you could void your settlement entirely or have to pay liquidated damages, depending on the agreement.

      If you want to risk these outcomes to get the word out about a bad doctor, that’s your choice.

  16. lostbunny says:

    I just fired my lawyer, we just finished the deposition and she did not show up but sent someone else 15 min prior, she informed me it was going to cost 30,000 dollars to prepare for trial in order to win a falling merchandise case against Walmart attorneys. She stated her partner in the firm was not willing to invest in a case against Walmart. I asked if she would be willing to partner with another firm. In the mean time my medical bills are 140,000 and climbing. I use a walker and wheelchair to get around. She wanted to negotiate the bills paid by my medical insurance to where the damages are 20,000 total. I may need surgery. I reviewed the documents and there were errors and missing medical information on the interrogatories. She never was able to locate the witnesses who saw the merchandise fall on me. Do I put an announcement in the local news paper? To top it off I went to my current medical provider who received a medical release form with my signature of over a year and half with the opposing law firms name. I never signed for them to receive my medical records on that date of reference. I did not know the opposing law firm at that time. I just barely new my ex=lawyers firm. I asked her about it and never got a response. So after three weeks I terminated because I could not trust her. She filed the withdraw papers at the court house. Now Im with out an attorney. What do I do? Will another firm pick up the case while it was during discovery and after my first deposition? So far I call and have been turned down? This happened in Nevada? I just went to see the surgeon and it looks like I will need surgery as a result of the injuries. Did the opposing Walmart counsel win? Should I go talk to the media?

    • fl_litig8r says:

      Tracking down witnesses to the accident won’t be easy (unless Walmart took down their names and contact information, in which case you can get them through discovery). Newspaper announcements aren’t as useful as they used to be, given how many people get their news online now.

      Finding another lawyer to take your case is the best thing to do, but don’t be surprised if you have to call a lot of lawyers before you find one willing to take your case (if any will). Walmart already has a reputation for forcing even meritorious cases to go to trial, and this strategy has succeeded in reducing the number of lawyers who will take anything but clear-cut cases against them. Lawyers are also reluctant to take on cases that were previously handled by another firm, as they usually involve either a firm that mishandled the case or a difficult client. You’ll just have to keep calling around to see if you can find one. I’d suggest not bashing your former lawyer when trying to retain a new one (this is a red flag that you may be a difficult client). If they ask why you fired the old firm, just mention that they told you they were not willing to take the case to trial only after accepting your case, and they wanted you to settle for far less than your medical bills alone.

      I doubt that going to the media is going to get you anywhere. They generally don’t care too much about personal injury claims unless there’s a particular hook that makes one newsworthy. Your case is pretty standard, so I don’t see why they’d be interested. If you still want to try going to the media, wait until after you’ve exhausted your attempts to retain a new lawyer.

      • lostbunny says:

        You were so right, it has been difficult to find an attorney who will take over my case. Im so hurt because Im in this wheelchair and I have 20 days to retain an attorney or the case is dismissed, I guess. I have so far called 10 attorneys. Im in tears as I write this to you. Most of them say the case is to far close to trial since I have all ready done my deposition. I dont know what to do?

        • fl_litig8r says:

          I doubt that the court would dismiss your case for not getting a new lawyer. More likely, it will consider you as acting pro se after the 20 days. Of course, that might as well be a dismissal if you can’t eventually find another lawyer, as most cases are too complicated for lay people to handle on their own. I’m sorry, but I can’t think of any other advice than to keep calling lawyers. It might help to focus on smaller firms. They tend to be less discriminating than larger ones (due to less advertising, resulting in fewer cases to choose from) and are usually just as good as the larger firms.

  17. Gina says:

    Insurance company for Subway called and asked for my social security number. I wanted to file a personal injury claim, but so far could not get an attorney. I gave her my ss#. Should I have not done so? She said she needed this information form medicare since that is what I have. Is there a way that I can insure they only have permission to use my ss# to get medical records for only the claim in question? Even though they now have my ss# (gave to them today), can I still specify that they can only use my ss# for that specific claim purpose? I don’t want them looking at all of my medical records or anything else not related to the claim incident. How can I prevent that? Thank you.

    • fl_litig8r says:

      I wouldn’t worry too much about them misusing your social security number. They’d be able to freely get it through discovery if a lawsuit was filed, anyway. As to them looking at your medical records not specifically related to the incident, they’d need a medical release from you to get them (a social security number wouldn’t be enough). Also, as pre-existing conditions are relevant to your current claim, your unrelated medical records are also something they’d be able to get should you have to file a lawsuit, so I wouldn’t be concerned about whether they get them now. They aren’t looking for potentially embarrassing things that are unrelated to your claim — they really don’t care about that stuff. Most insurers won’t settle a claim without seeing if you have a pre-existing condition, so giving them access to your other medical records is routine.

      • Gina says:

        Thank you very much! You helped put my mind at rest. You are providing a great service that is much needed. You are doing a lot of good and thank you.

        How should I deal with them going forward? I know they are writing down and recording everything that I say. I tell the truth so not worried about that. I just don’t want to say anything that I don’t have to that would hurt me.

  18. Dawn says:

    I was sued for defamation by my ex’s new wife after my child support enforcement case. She is claiming loss of wages. While investigating the case I found out the week she was fired was the week she attacked a co-worker. She is claiming defamation from a cease and desist letter I wrote 7 months prior to her job loss. She filed for unemployment and the employer took statements from all coworkers, can I subpoena the Texas Labor board? also she was arrested for aggravated assault with a deadly weapon and was in the newspaper, CPS got involved. She has since had her arrest record expunged and is now denying the incident in RFAdmissions. Is she allowed to deny the incident occurred? I have a certified copy of the police report and the CPS record that states what happened. That arrest is the axle of my suit.

    • fl_litig8r says:

      You should be able to subpoena the Texas Labor Board. You could also subpoena the former employer for these records, as I imagine that they probably kept copies as well (even if its lawyer has the records, a subpoena to the employer will require it to produce them, as the documents are still within the “control” of the employer, even though they are in the possession of the lawyer).

      With respect to Requests for Admissions, if a party denies something which is later proven to be true at trial, the court can award the party who sent the Request the costs incurred in proving the facts denied, such as subpoena or copy costs and attorney fees (if you have one, which it sounds like you don’t). There really isn’t any other penalty I’m aware of (unless your state rules of procedure vary from most states on this issue) for denying a “true” Request for Admission. You may want to send a similar question or set of questions, drawn narrowly to avoid wiggle room, in the form of Interrogatories. Unlike Requests for Admissions, Interrogatories must be answered under oath, so if she intentionally lies in her response and you can prove it, you may be able to ask the court to sanction her, up to having it strike her Complaint (so she loses).

      I am curious as to how she is bringing a defamation claim based on a cease and desist letter. To whom was the letter sent? If it was just sent to her, it can’t form the basis for a defamation claim, because defamation involves false statements made about someone to a third party, not to the person herself.

  19. Teresa Cramer says:

    I realize this question is more on the plaintiffs side of the field. But all I can do is ask and the worst you can do is decline to answer.
    Is there a reason that a plaintiffs personal injury attorney wouldn’t take the deposition of a defense expert?

    • fl_litig8r says:

      There are scenarios I can envision where a lawyer would choose to not depose the other side’s expert, though they are pretty rare. If the expert provided a report that contained errors (e.g., an economist’s report with math errors or a doctor who assumed a preexisting condition where there was none), strategically you may want to expose those errors at trial, where they will have significant impact, rather than risk the expert catching them in a deposition and correcting them before trial. In some cases where the damages are relatively small, it may just not be cost effective to depose an expert, especially if that expert has already provided a report containing his opinions.

  20. Teresa Cramer says:

    After telling me for 6 years how excited my attorney was at the strength of my case, my attorney suddenly contacts me a few days prior to trial and 2 months from the 5 yr trial statue to tell me that I suddenly dont have a case and insisted I drop the case. When I declined to do that. He then asks me to fire him. When I refused, he demanded I produce 15k within a few days. When I told him I couldn’t do that, his office calls me and tells me he filed a motion to withdraw as counsel and that I must appear in court on Monday (3 day later).
    My attorney told the court that I threatened to bash in his head with my cain. Furthermore, he had 2 of his employees write declarations stating that I did this.
    My question is this. I can prove beyond any shadow that this just didn’t happen. Can I sue these ladies for filing a fraudulent declaration? This is my first experience with an attorney. I looked him up on the Ca. STATE BAR and it shows that this isn’t his first rodeo as he has list his license now 3 times for this exact same behavior.

    • fl_litig8r says:

      Proving what you said or didn’t say may not be as easy as you think. Even if you have witnesses on your side to say that you didn’t make the statement claimed, it would still be a swearing match between witnesses. While potentially you could sue these people for libel, libel cases involving a “he said/she said” scenario are not slam dunks, and your damages in this particular case (losing the services of a lawyer who doesn’t want to represent you anyway) would be questionable.

  21. trish della says:

    Hello, I have a divorce discovery question??? My ex is asking for a print out of my text messages and e mails!! How do I answer this question and do I have to give him copies of all my private text and emails??? Please help!!!

    • fl_litig8r says:

      The safest route to try to avoid producing everything is to file a Motion for a Protective Order, asking the court to limit the scope of the request. You could try asking that the request be limited only to those items between you and your ex, to those which discuss your finances/assets and/or children or that the court itself conduct an in camera inspection of all of the items before they are turned over to your ex (the court would see them all and only turn over to your ex the ones which may be relevant to the case). You could ask for all of these in the same motion, starting with the most restrictive and asking in the alternative for the less restrictive ones (leaving the in camera inspection one for last). State what concerns you have about your ex delving into unrelated private matters that are not relevant to the proceedings. If you have a lawyer, be sure to raise that fact if any of the items would violate attorney-client privilege.

      A less safe route would be to object in response to each request on the grounds that they are overly broad and burdensome (Typically, you just respond with “Objection, overly broad and burdensome” — and “Attorney-client privilege”, if appropriate). If you don’t have enough time to prepare and file the motion before the answers are due to your ex, you could do this and then file the motion as soon as possible thereafter. If you don’t file the motion and just object, your husband may file a Motion to Compel, which, if successful, may result in you having to pay his attorney’s fees for the time involved pursuing that motion in addition to requiring you to produce the requested materials. In my experience, courts are far less likely to award fees against a person who files a Motion for Protective Order (even one that is denied) than one who loses on the other side’s Motion to Compel.

  22. Heather says:

    Following my accident I visited with a psychologist weekly for several years, and I thought that our conversations were protected under doctor-patient confidentiality. During my deposition, one of the opposing attorneys consistently brought up specifics that I mentioned to my psychologist in confidence years earlier. I understand that they have a right to my medical history, particularly to documentations of my injuries, and I am aware that the information was more than likely subpoenaed; however, don’t I have the right to at least be notified that my entire file with him was being scrutinized/be given the opportunity to appeal this request? It seems that all that would be necessary for them to obtain would be the diagnoses made by him. Is this standard practice?

    • fl_litig8r says:

      It is standard practice in any case where the plaintiff alleges emotional distress for the defense attorney to obtain the plaintiff’s mental health records. If they did it because they had a release from you, they would not need to notify anyone when the request was made. They could just send the release to your provider along with the request for the records.

      If they subpoenaed the records, the rules require that before the subpoena is issued that they give “prior notice” to your attorney (or you, if you have no lawyer) before the subpoena is sent to the custodian of the records sought. Some states’ rules set forth a certain number of days in advance to meet this “prior notice” requirement — in Florida it’s 10 days, 15 if notice is sent by mail. The notice will include a formal notice form and a copy of the subpoena which will be issued — it’s hard to miss.

      Unless you dropped your emotional distress claim, it’s likely that you would not have been able to prevent them from obtaining these records even if you knew about the subpoena in advance. If they subpoenaed these records without giving prior notice, this may be something for which the court would sanction their lawyer — more likely it would just give a stern warning not to do it again unless this was part of a pattern of behavior by that lawyer.

  23. Geiselle says:

    Will the same rules for discovery apply to family law?

    • fl_litig8r says:

      While family law actions will generally be subject to their own rules of civil procedure that deviate from the standard rules of procedure for civil cases, the same discovery tools (interrogatories, requests for production, requests for admission, depositions and subpoenas) are available in family court actions. Obviously, the relevant areas of inquiry will be different from those in a personal injury case. So, while the types of information sought will be different, the tools for obtaining that information are the same.

  24. Paul Gozaloff says:

    I am in a Federal Civil Rights Suit 1983 against a Municpality and thier Police Department. I am claiming emotional distress and anguish to my and my wife as a result of the defendants actions. I have a 22 year existing Mental Condition that the defendants are trying to put on trail, although there are witness. There is an upcomming hearing I refused to sign over all my HIPAA rights complete access to all my records post incident. Do you know if these records, or those rule relevant to the Magistrate, are turned over to the defense if they then need to meet the HIPAA information security controls spelled out in the act including the recent changes that include those of Partners of Covered entities? Any case law or president would be helpful. Thankyou

    • fl_litig8r says:

      I’m not sure what your specific concerns are. Typical HIPAA releases prohibit the redisclosure of mental health information without specific consent from the party signing the authorization (unless specifically allowed by state or federal law), so if you’re concerned about the defendant sharing the records it gets with a third party, the authorization should prevent that. If you are concerned about the records being filed in open court filings, most courts have rules prohibiting this (they are filed under seal, when filing is needed). Any other specific concerns you have about misuse of these records could be addressed through a Motion for Protective Order, in which you ask the court to specifically prohibit the conduct you are concerned about. Many times, a defendant will agree to such a motion insofar as it doesn’t affect its ability to litigate the claim.

      If you are truly trying to prevent the defendant from seeing these records at all, I doubt that you will succeed. By putting your mental health at issue through a claim of emotional distress, you have opened the door to discovery of your complete mental health history. It might help if I knew the specific concern you have about what the defendant will do with your records.

  25. Lucy says:

    I have a products liability filed in Federal Southern District of FL. What is the relevance of the joint schedule dictating “the Defendants self insured retention exceeds the value of this case.”

    • fl_litig8r says:

      I’m not sure why this would be in the parties’ planning report (I’m assuming this is what you’re referring to), but a “self-insured retention” means that even though the defendant has liability insurance, the defendant is responsible for paying a certain amount (usually a combination of defense costs and settlement/judgment amounts) before the insurance company is responsible for defending and indemnifying against a claim. In your case, they are representing that self-insured retention is so high that the insurance will never be triggered.

      For example, if a defendant has a $1 million policy with a $50,000.00 self-insured retention, the insurer wouldn’t pay a cent for the claim (not even to pay the defendant’s attorney) until the defendant has spent $50,000.00 out of pocket, either through costs of defense (attorneys fees and other case-related expenses) or a combination of defense costs and settlement costs. Once the defendant has spent $50,000.00, the insurer takes over paying for defense costs and settlement/judgment amounts.

      The only real significance I see for your case is that it appears that you will only need the consent of the defendant itself to settle, and not its insurer, because the defendant expects to be paying your claim entirely out of its own pocket.

      • Lucy says:

        Thank you for your informative answer. I could not find another category to enter the question into.
        I have started the process of interrogatories and RFD. I live in FL. now, however, I am an implant, and the previous state of residence does not require medical records to be held for 10 yrs. There is a 7 yr limitation. I was a victim of a violent crime which rendered me disabled 8yrs ago. My current injuries are for nothing related but I am aware of the need for the records.
        Do you feel this response will render a headache for the Judge? “Plaintiff objects to this request as it is overly broad, annoying to produce, unduly burdensome, or unnecessarily expensive. Plaintiff was residing in another state within the past ten years and the state of previous residence does not mandate any hospital, physician, or health care provider, to maintain records for 10 years. Plaintiff is not in possession of past medical records, films, or other related requests, and cannot obtain these items from past providers for the time indicated.”
        The set of interrogatories I received also contained a total of 30 questions, plus two questions containing sub-parts, for a total of 34 questions. I answered the first 25 and objected to the rest. Part of the RFD refer specifically to “the answers provided within interrogatory question…”, I have objected to this questions in the following manner, “Plaintiff objects to the request as it refers to Answers to Interrogatories not answered by Plaintiff as these interrogatory questions were objected to, with entirety, as they exceed the allowable number of questions under the specific rules for the request of documents.” Do you feel this will cause an issue?
        Thank you so much for the service you are providing. It is a nice feeling to find an attorney who is real instead of just a money clip. :)

        • fl_litig8r says:

          If you are responding to a Request for Production and you don’t have the documents requested (such as medical records), you don’t need to object. You just provide the documents you do have and state that you have provided all records in your possession. A Request for Production doesn’t require a plaintiff to go out and obtain records she doesn’t have (that’s not to say you can give your records to a third party to hold to avoid them being in your possession).

          The defendant is likely going to subpoena those medical records anyway, so they probably won’t even make a fuss about you not providing records from all providers.

          As to the Interrogatories, I checked and the Local Rules of the Southern District of Florida do not expand the number of Interrogatories, including discrete sub-parts, beyond the 25 allowed in the standard Federal Rules of Civil Procedure. However, this number can be expanded by agreement of the parties or court order, so be sure that your parties’ planning report or any initial scheduling order issued by the court didn’t alter this number before objecting.

          If you are confident that the 25 Interrogatory limit has not been altered, then your objection to the related document request seems o.k.

  26. Lucy says:

    I checked the joint schedule drafted between all parties and also the Magistrate ruling on the joint schedule and do not find an extension of any kind or relating to the interrogatories.
    One of the questions asks, ” Did you have any physical infirmity, disability, sickness, or consume alcohol/medications at the time of or prior to the incident described in the complaint? If so, what was the nature of the infirmity, disability, sickness, consumption? In answering please state whether you consumed any alcoholic beverages or had taken any drugs or medication within twelve hours before the time of the incident described in the complaint and if so, state the type and amount of alcoholic beverages, drugs or medication which were consumed and when and where you consumed them.” I am wrong to presume this is two separate questions rolled into one?
    Both Defendants have obtained the same counsel. Are they able to ask for two sets of interrogatories or does everything they do count as an inclusive culmination?
    I understand their need for the records in question as I was previously disabled, however, the extra questions all pertain to records from SSD for the past ten years. I am unsure of the time line SSD retains records. My original disability was 8 years ago. I definitely do not possess the original application or the past eight years of annual award letters.
    I have read conflicting opinions of obtaining your own records as opposed to allowing the opposing side to have a release giving them free reign. Any suggestions?
    Thank you for your valuable insight.

    • fl_litig8r says:

      While that question might sound like more than one, I doubt that the court would see it that way. It is really only asking about one subject (things that may have impaired you) and asking for details if your answer is yes. It’s like asking, “Have you ever done X, and if so, identify all the dates and times you did.” That will generally be considered one question for purposes of interrogatories.

      Even though the two defendants have the same lawyer, technically they are each allowed to submit their own interrogatories. Think about what would happen if there were specific issues that applied to each defendant individually — they should be allowed to ask their own questions relating to their own issues without being subject to a joint cap. That being said, if these interrogatories were submitted jointly on behalf of both defendants, the 25 question limit would still apply, as they are both asking all the same questions. It would be treated as if both had submitted the same interrogatories separately, with each defendant’s interrogatories being cut off at the same 25-question mark.

      If they wanted to, they could have submitted the first 25 questions on behalf of one client, and the remainder separately on behalf of the other. If they didn’t do that, and submitted them together on behalf of both, then that was just a procedural misstep which still allows you to cut them off at after the first 25.

      With respect to the SSD records, you can try to represent that you have requested the records (if you have) and will provide them upon receipt, but if they ask the court to force you to sign a release allowing them to obtain the SSD records on their own, don’t be shocked if it allows that.

  27. Lucy says:

    Thanks again for the great advice. When I received the interrogatories and RFP it only has one Defendant listed (which is the first Defendant listed on the suit) so I will keep with my objection and if nothing else, force them to render new ones under the other Defendant.
    Thanks again for your great advice. I have an uphill battle with limited ammunition and the odds are greatly stacked against me. So I hope justice truly prevails in this case. Only time will tell how my “day in court” pans out. Keeping my rabbits foot close. lol

  28. Nicole says:

    After a 8 year battle with my abusive ex husband I finally got full custody back of my two sons. My ex and I were young when we got married, so there were no serious prior relationships and no criminal backgrounds yet. It was my word against his on the abuse I suffered for the five years I was with him. Unfortunately I was isolated and those that were around us while I was married were his supporters. Now my sons are old enough that they can speak for themselves and tell of the abuse they suffered while my ex hid them from me. Now that I have full custody of my sons and the recent abuse my sons suffered before I got them back I filed a request for my ex husband to have “monitored professional 3rd party visitation only” until he gets help with his anger and abusive behaviors. The court granted this request with a follow up “Show of Cause” hearing. My ex husband is out for vengeance and would go to his grave before he would ever admit to being an abuser. His attorney and him are trying to turn this court date into a circus. They are trying to prove that I am an unfit mother with mental health issues. They are trying to submit 911 calls made by my ex boyfriend back in 2007 that ended up in his arrest not mine. On top of that I did not have my children with me and it had nothing to do with them. As well as bringing up a suicide attempt from 2007 because I was so depressed that I didn’t have my children, but since then I have got intensive therapy for years following and have never attempted suicide again. These calls and medical history have nothing to do with the present day or the fact that this case is about him and his abuse and that my children are unsafe with him. Is there anything I can file to get these irrelevant and outdated records sealed or block them somehow from being used? As always he is trying to deflect his wrong doings by attempting “defamation of my character”. This is being held in Oregon in two weeks and any help or suggestions you have of how to keep this Show Cause Hearing on the real issues of the physical abuse and mental abuse my poor sons have suffered through at the hands of their father I would greatly and open mindedly take in with gratitude. My goal is to keep my kids safe and for the Professional Supervision to continue so that they can still have a relationship with their dad in an environment that is safe and healthy until such time that their dad get the help he need to insure he can provide such environment on his own. I am a good mom and I admit when I lost my kids in a unfair battle and knew the courts just feed my kids to an abuser I was weak and made a selfish desition to attempt to take my life, but I have work very hard to restore my strength and I since battled him again and I got my children back finally! DHS found him guilty of Child Abuse and Domestic Abuse to not just me, but his recent ex wife. His lawyer and him are trying to get these records sealed saying it’s defamation to his character, but this is recent findings and has complete relevance to this court hearing. Will he be able to seal these DHS records? And shouldn’t I be able to seal off records that dont have to do with this case and that happened 6 years ago?

    • fl_litig8r says:

      First off, know that I am not a family lawyer, so there may very well be certain evidentiary issues that are treated differently in family court than in a standard civil lawsuit. That being said, I don’t see that there are grounds to have any of this evidence, against either you or your husband, excluded, unless there are issues with the authenticity of the records being submitted. One problem you face with having evidence excluded in family court is that you’re asking the judge who is handling the hearing to exclude the evidence — and judges usually need to review evidence before deciding whether it should be excluded. So, the judge is going to see the evidence anyway and you’d just have to take it on faith that if the judge decided to exclude it that it wouldn’t be considered (realistically, though, you can’t unring that bell).

      The arguments being used for exclusion of the evidence really sound more like they are attacking the weight the judge should afford the evidence, and not its admissibility. “Relevance” is an extremely broad legal term, so arguing that this evidence isn’t relevant would be a waste of time. At best you could argue that the prejudicial value of the evidence exceeds its probative value, but this usually only works if the evidence is only tangentially relevant to the issue being decided (as all evidence is prejudicial to some extent).

      Therefore, I have my doubts as to any of the evidence you discuss being excluded. Rather, I think the court will assign varying weight to the evidence based on factors such as how long ago the alleged incidents happened (and any corrective steps taken since) and how likely the behaviors involved will affect the children going forward. Again, this should all be taken with the understanding that I’m basing my opinion on how I feel this evidentiary issue would be decided in a typical civil court case, which may not be how it is decided in family court.

      As to whether certain records can be sealed, that really wouldn’t help you at this point if your ex-husband is already aware of them. Sealing records just removes them from the public view. It doesn’t preclude them from use in a subsequent court proceeding (as opposed to having records expunged, which is rare except in certain criminal cases). I doubt that this matter is going to be won or lost based on technicalities over records being sealed or excluded (which again, I wouldn’t expect the court to do anyway), but on the court’s discretion to give the appropriate amount of weight to the evidence presented in light of its likelihood to affect the well-being of the children in the future.

  29. RWims says:

    We have a personal injury claim and our lawyer is handling the case. The discovery phase has requested nine years of our tax records and our lawyer wants us to producer the documents. Do I need to provide nine years of tax information? Can I provide the tax documents from the time this incident occurred (the latter part of 2009) until now? I don’t feel this is relevant. Additionally, my husband is self employed so there is nothing reflecting loss of income on our taxes. I’ve been a stay at home mother; I will return to work this year. Please tell me what options I have against providing this information.

    • fl_litig8r says:

      If you are making any kind of wage loss claim, you’ll have to produce the records as requested. Nine years of records may sound like a lot, but that’s only because the incident took place so long ago. It’s not unusual to request records going back 5 years from before the incident to establish a base income from which the defendant can try to determine the subsequent loss in income (which the 4 years of post accident records are for).

      If you aren’t making any type of wage loss claim for either yourself or your husband, I’d ask your lawyer why he feels that these records are relevant and should be produced. Usually, personal injury plaintiffs who don’t make a wage loss claim don’t have to produce tax records.

  30. Chris says:

    I am in a personal injury lawsuit as plaintiff and opposing council is asking for records pertaining to a prior auto injury lawsuit where I was the defendant. That case was settled out of court after mediation. What could he want with that? Am I going to have to relive that nightmare all over again?

    • fl_litig8r says:

      It could be that he may try to claim that you had injuries from the at-fault accident so that he can try to attribute some of your damages to a preexisting condition. He won’t be able to use the prior accident to show that you were at fault in part for this accident, as “prior bad acts” are typically inadmissible. You won’t have to relitigate the old case, so I wouldn’t read too much into his request.

  31. lSA123 says:

    I have a question concerning a residential dispute, which has resulted in me filing a lawsuit against the property owner in Texas. The defense attorney has asked me to confirm or deny my reference to all names used in the past, my maiden, prior married and married names. Why is this even relevant for him to know?

    • fl_litig8r says:

      The first thing you should know is that the majority of questions asked in interrogatories are not custom tailored for your particular case. They are boilerplate questions that lawyers ask in every case. The one about all the names you’ve ever used is one of them. Rarely does this provide useful information, but we ask anyway on the off chance that something unusual or usable will appear, and we don’t want to be the one lawyer who didn’t ask this question when we should have.

      That being said, knowing all of the names you’ve gone by could potentially lead to admissible evidence because it allows the attorney to check for background information, such as lawsuits you’ve been a party to and any prior criminal convictions. Although the lawyer almost always asks for this information in other interrogatories, he’s not required to take your word for it, even though it’s under oath.

      In short, don’t take it personally. Unless you’ve got some damaging skeletons in your past under a different name, it’s likely that nothing will come from you providing this information. The broad scope of discovery definitely allows him to ask for this information, so you really can’t object to it. Think of it as the lawyer wasting an interrogatory, which are often limited in number by the rules of civil procedure.

  32. Edwin says:

    Self-representing in an auto accident / premises liability hybrid case. (Along line of design of parking lot induced multiple accidents at same spot.) Counsel for property owner answered all discovery requests such as “admit the intersection circled on exhibit a has no stop signs” (where exhibit a is a high res google map satellite image) along the lines of not enough information to answer this question / question doesn’t make any sense. Counsel now asking to do a site inspection with us, so we can explain our discovery questions. Take my word for that the questions and exhibits were in simple English, and made it clear for anyone not even familiar with the property what was being asked. Agree to the site inspection to move things along rather than motion to compel — or be wary of alterior motives like them trying to pry into what we’re going to argue for our case — almost like an off the record deposition before the actual deposition?

    • Edwin says:

      IF agreeing to do the site inspection, would it be beneficial to have a written agreement that any discussion taking place is off the record? (They haven’t suggested that, it’s my idea that I haven’t brought up.) Or, would it be better not to have — in case a non-attorney on their side says something dumb like “yeah there should be a stop sign here”. (I can always hope…)

      • fl_litig8r says:

        As I said in my first response, I wouldn’t partake in the site inspection. I doubt that defense counsel would ever agree to an “off the record” type agreement. That would present too many enforcement problems, as clearly you’ll be discussing things that would later have been argued regardless of whether you spoke of them at the inspection — so what exactly would be “off the record”? Would it just be the actual admissions that were possibly made? What about something you say that leads them to find another means of proving your statement, something they never would have looked for but for your statements at the inspection. I just can’t see such an agreement ever working.

        Just to give you an example, I’ll use mediation, where confidentiality is the rule, to demonstrate. If a plaintiff at mediation makes reference to a prior accident of which the defendant was previously unaware, the defendant can’t submit that statement as evidence, but he can certainly ask at trial if the plaintiff had any prior accidents and he can hunt down those records from the prior accident to prove that it occurred. You see, protecting only the statements made themselves doesn’t preclude the other side from using the information gleaned from those statements against you.

        Just as an aside, if his lawyer said “Yeah there should be a stop sign there”, that wouldn’t be admissible. He’s not an expert on traffic signals and parking lot design, and his opinions won’t be imputed to his client. So, really, you bear all the risk should you attend such a meeting. His lawyer can say whatever he wants and it’s 99.999999% likely not to be admissible. Everything you say, on the other hand, could be an admission because you’re an actual party.

    • fl_litig8r says:

      A property owner asking for a site inspection of his own property sounds like it’s just a set-up to informally pump you for information. He owns the property. He can view it whenever he wants to — there’s no need to resort to discovery to do this.

      I wouldn’t be too upset about the vague/incomplete request for admission and interrogatory answers. That’s pretty standard even in cases where the plaintiff is represented by an attorney. I doubt that a motion to compel would do you much good. They could just flat out deny all of your requests for admission, because the only real penalty for doing so is if the requesting side proves the matter to be true at trial, the denying side has to pay the expenses the requesting side incurred in proving the matter which should have been admitted. Without you having attorney’s fees as an expense, I’m surprised that they bothered admitting anything at all — they probably did so just to avoid awkwardness at a potential deposition of their client, where he’d look like an idiot for denying something in his RFA responses that he later admitted in his deposition.

      Your most effective discovery tool as a plaintiff is going to be depositions. If you spill all of your concerns and questions before the deposition (as you may have already done through your written discovery), you’ll allow the defendant time to have his attorney prepare his answers. Any more information, even questions you have, that you reveal at this point just further hampers your ability to conduct an effective deposition.

      In short, I wouldn’t go forward with their site inspection (if they want to do it alone, let them) — nor would I bother with a motion to compel. Rather, I’d set the deposition of the owner and nail him down on his answers before his lawyer gets a chance to thoroughly prepare him for everything you’re going to ask. You can bring photos and Google map images to the depo, have them attached as exhibits, and ask him questions based on those live during the deposition. It’s easy to evade these questions in writing, especially when your lawyer has plenty of time to think of the answers. It’s not so easy to do it live at a deposition, where you can ask follow-ups, and his lawyer isn’t allowed to coach him on his answers.

  33. Edwin says:

    Given release of medical records in name of my doctors, plus my auto insurance company. All the auto insurance company will have that the doctors’ records won’t give is their bogus IME’s they used to terminate coverage. IME’s are clearly not medical treatment. Refuse to sign that release, on basis there was no medical treatment with them, or just sign it, if likely they’d prevail on a subpoena over a motion to quash from me? (Don’t want them to have it, but gut thinks IME’s would be discoverable.)

    • fl_litig8r says:

      I never give medical releases to third-party liability defendants (as opposed to when you’re suing your own insurer, a first-party defendant, who can use their “cooperation clause” to deny coverage if you don’t give a release). Let them subpoena the records. You’re right that these records are probably all discoverable, but making them subpoena the records forces them to give you notice of everyone from whom they are requesting records, and every time they do it. It also allows you serve the defendant with a “Request for Copies”, which forces them to give you copies of everything they get via subpoena (you’ll have to pay for the copies, but only at a reasonable copy rate, not the rate they have to pay the doctors, which can be exorbitant).

      There’s no downside to making them subpoena the records. There’s plenty of downside to giving them a release.

  34. Fran says:

    Why would a defense lawyer ask for my signature 5 times in discovery interrogatories?

    • fl_litig8r says:

      I’m not sure I understand the question. Does the interrogatory actually say, “please sign your signature below five times”, as in, he wants a signature sample and thinks you can’t fake an unnatural signature 5 times? Does this case deal with verifying your signature on something?

  35. Chris says:

    I received a subpoena for a deposition in a civil judgement case. The papers consisted of 5 pages of documents they want us to produce. Some we have no access to anymore, and the majority do not pertain to us at all. They want us to provide our new landlords name and address and a copy of our lease, why would they need this? Can we redact our children’s social security numbers on tax documents? Lastly these papers that we were served with were not signed by any officer of the courts, only the plaintiffs attorney. They were also served by someone not associated with the court. They didn’t even require us to sign the papers to prove they were served. How do I know everything being requested is legal if it was never signed by anyone.

    • fl_litig8r says:

      I’m assuming that you aren’t a party to the case from which the subpoena issued — that you’re just some third-party witness. With respect to the documents you no longer have access to, just explain that during the deposition. You aren’t expected to produce what you no longer have — of course, that doesn’t mean you can throw things away after you get the subpoena to avoid producing them.

      I can’t even speculate as to why they’d need your lease information without knowing anything about the underlying lawsuit.

      Generally, redacting things from subpoenaed records isn’t something you should do on your own. I don’t know why you’re afraid of the lawyer getting hold of your children’s social security numbers, but you could simply ask the lawyer if you could redact those when you show up at the deposition. If they aren’t something he needs (and they probably aren’t) he likely won’t have any problem with them being redacted. Doing it yourself without asking is likely to be received less kindly.

      The issues you have with the service and signature on the subpoena are not really issues at all. In most states, lawyers are empowered to issue their own subpoenas without having to go through the court — for example, I do this in Florida all the time. They can be served by a private process server and that person doesn’t need your signature to prove service. I doubt you have any procedural grounds upon which you could refuse to honor the subpoena.

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