Lawsuit Discovery Phase in Civil Cases
The steps of a civil lawsuit are pretty straightforward. The majority of civil cases begin with the filing of a complaint. This begins the journey in the litigation process. One step in the proceedings is the “discovery phase”. This is when the parties to a lawsuit exchange relevant information with each other. In this post, we examine the lawsuit discovery phase, what it is, why it is used and consider its effect on the need for lawsuit funding.
Discovery Mechanisms in Lawsuit Proceedings
If “pre-suit” settlement negotiations break down, plaintiff will begin formal proceedings by filing a complaint in the appropriate venue. Civil law basics dictate the filing of a complaint to begin the legal process. In this document, plaintiffs cite the reason(s) for the suit and what relief is sought.
Once the defendant(s) are served, they have a certain amount of time to answer the complaint. The Answer responds to each of plaintiff’s allegations by either admitting or denying the assertions. Afterwards, the lawsuit discovery phase begins.
Discovery is where all parties of the case are required to share information with each other. This is mandated by court rules and in the interests of justice. The idea behind the sharing of information is to streamline the process and narrow down issues to be decided by a judge or jury. Plaintiffs and defendants use some or all of the following mechanisms to share information during discovery:
Interrogatories are questions asked by parties to the lawsuit. These questions are then answered by the other parties and their truthfulness certified under penalty of perjury. Interrogatories are routinely used to locate available insurance coverage, pin down one party’s account of the relevant events and circumstances surrounding the lawsuit, and uncover other potential issues in the case.
Requests for the Production of Documents
These are usually requests for any and all documents that might be relevant to the proceedings. The purpose of the request is to gain insight into any important documentary evidence that the opposing party holds. A typical request for documents might demand all “notes, correspondence, bills, invoices, diagrams, photographs, x-rays or other documents prepared or reviewed by each person whom YOU expect to call as witness at trial.“
Depositions are when plaintiffs, defendants, witnesses, experts and other parties are asked verbal questions under oath. The testimony is recorded and transcribed as formal testimony as if the testimony were taken in the courtroom at trial. Depositions are often used during trial to prove/disprove certain facts or impeach the credibility of witnesses.
Requests for Admissions
Requests for Admissions are questions propounded on any party asking them to admit or deny the truth of certain statements under oath. The aim for these requests is to further narrow down what facts are still disputed and need to be decided at trial.
Lists are given of potential witnesses to the events or circumstances surrounding the case. Witness lists are important to avoid “trial by ambush” where parties call surprise witnesses to prove or disprove certain issues at trial. This puts the other side at a disadvantage since there is no time to refute or otherwise discredit the evidence.
Time for Discovery Mandated by Court Rules
Court rules state that each discovery request gives the other party time to respond. For example, Federal Rules of Civil Procedure (FRCP) Rule 33(b) requires interrogatories be answered within 30 days. Likewise, 30 days is allowed to respond to requests for the production of documents under Rule 34(b). For Requests for Admissions – 30 days under FRCP. Rule 32 mandates 14 days notice of a scheduled deposition.
If a dispute arises regarding any type lawsuit discovery issue, lawyers will argue their positions by filing motions and supporting briefs to the court. The judge will consider the arguments on both sides and could schedule oral argument before the Judge at a certain day/time. In state courts, these are usually conducted on “motion days” (days set aside specifically to hear motions). Most state courts have a couple of motion days each month.
The lawsuit discovery phase can be the most time consuming portion of the civil litigation process. It can last many months and could last many years depending on the complexity of the case, number of witnesses, scheduling issues, etc. At best, the lawsuit discovery phase will last several months in even the most routine civil cases.
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Point of the Lawsuit Discovery Phase
Like we mentioned earlier, the purpose of the lawsuit discovery phase is to promote the fair adjudication of a dispute under the law. By identifying the undisputed facts, the inquiry narrows down the issues and focuses on the areas that remain in dispute. These disputed issues will eventually be determined by the court at trial by factoring witnesses credibility and the application of established legal principles.
Delays Built Into the Legal Process
The bad news is that discovery takes time. That is both a blessing and a curse depending on the point of view. For defendants, delaying justice is helpful as it allows defendants to prepare for an eventual loss. For plaintiffs, especially individuals, delays can be a source of pain and discomfort.
Consider a plaintiff who was involved in an accident and can no longer work because of his injuries. Although a lawsuit is filed against the at-fault party, he must still wait patiently for the case to matriculate through the process. Bills and expenses still must be paid and after a short time, his finances are destroyed. He will eventually receive compensation but that is not helping his immediate financial situation.
These types of situations are common and can lead to plaintiffs accepting low-ball settlement offers because they cannot wait out the process. Faced with many more months of discovery, plaintiffs agree to lower amounts just to make ends meet.
Lawsuit Funding – Fighting the Delay
When the lawsuit discovery phase lingers on and plaintiffs need immediate financial support, lawsuit funding presents a solution. Lawsuit funding is a type of specialty finance product which offers financial support to plaintiffs while a case moves through the system.
Structured as a sale of future proceeds, lawsuit loans are advances on a potential settlement. Plaintiffs receive immediate cash to pay for any type of expenditure. In return, plaintiffs pledge a portion of the settlement to the lawsuit lender.
Repayment is dependent upon a successful recovery. This is the primary difference between loans and lawsuit loans. Because any loss is a total loss of investment, lawsuit loans are riskier than traditional loans. Thus, lawsuit loan costs must be higher than regular loans to account for the additional risk.
Lawsuit Loans Help Plaintiffs in Need
Despite the additional cost, lawsuit loans can be a valuable tool to combat the problems inherent in the lawsuit discovery phase and the legal process in general. If you were injured, have a lawsuit and need cash prior to settlement, a lawsuit loan could be the answer.
Thank you for your interest in lawsuit loans.