Step 5: Discover and Collect Evidence

After the complaint has been filed and the initial pleading stage is completed, the priority becomes researching, analyzing, testing, and questioning the facts and the involved parties. The plaintiff’s and the defendant’s counsel collect and share information about each side of the case. Generally, both sides have the right of discovery in order to proceed to trial with full knowledge of the relevant facts, unless the evidence is protected by a specific privilege.

The plaintiff’s counsel may request documents such as:

  • Medical records
  • Test results
  • Policy and procedure statements
  • Contracts
  • Emails, letters, and notes
  • Biographies
  • Proof of credentials

The defendant’s counsel may request that the child who has been injured receives an independent medical examination. In addition, the defendant may review financial records, tax returns, expense reports, and medical histories. Both sides may request depositions and interrogatories, present witness testimony, and produce witness statements.

Information exchange

To ensure a fair trial, where both sides may present effective arguments, information is shared between parties. The courts typically do not allow surprise evidence or last minute witnesses. There are steps in place to postpone or delay the trial if last-minute evidence is acquired and presented by one side. This allows the opposing side to have time to properly review the new evidence and prepare a response.

Forms of information exchange during litigation may include:

  • Depositions – Depositions are oral answers provided under oath to the opposing counsel. Depositions also can be held for witnesses and knowledgeable individuals expected to testify or contribute to the case.
  • Interrogatories – Interrogatories are written questions submitted to the opposing party requiring answers made under oath and penalty of perjury. The answering party’s counsel will assist in clarifying questions, understanding intent, and avoiding ambiguous response. The attorney may object to the relevancy of the question.
  • Motion to produce – A motion to produce is a request for documents or evidence that the other party has in his possession for purposes of duplication, review, and analysis. These include:
    • Requests for production of documents or items – These are requests for documents or physical items for review, such as contracts, emails, letters, policies, procedure manuals, tax returns, financial records, licenses, certifications, quality standards, and training documents.
    • Requests for independent examination – These are requests for an independent witness to examine the physical or mental condition of the injured party. A request can also be made to examine policy, procedures, processes, licensing, and practice standards. This may involve a consultant to access and review financial record keeping, safety measures, operational processes, patient reporting, computer forensics, or hiring procedures, to name a few.
    • Request to admit or stipulate – This requires both parties to agree to the truth of common facts so that both sides will not have to prepare, dispute, or provide proof during trial.

Summary judgments

A summary judgment is generally a decision made by the court before trial on the merits of an entire case, or a specific element of the case. Counsel for the parties provides notice of their claims, their defense, and their proposed evidence to the judge. This is when a party will provide a summary of evidence, such as sworn statements, documentary proof, oral arguments, or witness statements, to prove that there are no more issues of fact remaining to be tried.

The strategy is to persuade the court that there are grounds for pre-trial dismissal of the complaint, dismissal of a named party in the case, or dismissal of the case altogether, before the trial begins. The judge interprets the law, based on the presented arguments, about whether there is merit for that particular item to proceed to trial. If a claim is dismissed or a defendant released from the complaint, it means the judge has found there are undisputed facts that would make it impossible for the plaintiff to prevail if the matter proceeds to trial.

If the case is dismissed altogether, the judge has ruled that there is no merit to the case, as presented. A summary judgment can be appealed by showing substantial new evidence that a dispute of facts exists and can be proven.

Settlement talks

Typically, settlement talks begin during the discovery and evidence collection stage. The review of evidence and the totality of the allegations foster an atmosphere in which the disputing parties are receptive to a legally-binding agreement that would be approved by all involved parties. Settlements can be reached before court action begins or during the court process before a verdict is issued.

Litigation in birth injury cases can be time-consuming and emotionally draining for families, which is why it’s important for experienced legal counsel to represent you in these complex cases. Stern Law, PLLC has over 30 years of experience in birth injury cases, and we will diligently gather evidence on your behalf and, if necessary, fight for your rights in a trial setting.

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