What is Discovery?
Discovery is a pre-trial process where plaintiffs and defendants apply civil procedure rules to discover information pertinent to their position. Civil courts usually allow a broad latitude of exploration in the discovery phase. This makes good sense as the purpose of all lawsuits is to obtain the truth about the complaint and determine what degree of responsibility each side bears.
The leading authority for setting out discovery allowances and limitations is the United States Federal Rules of Civil Procedure (FRCP). Although a federal government framework, most states use the FRCP as a guideline and refine certain procedures within their courts of jurisdiction. Rules 26 to 37 of Title V in the FRCP describe how the civil lawsuit discovery process is controlled.
Mesothelioma Discovery Process
Mesothelioma lawsuit rules are particularly subject to jurisdictional variances as these litigations are highly complex and time-consuming. Different courts allow different procedures in some areas, and it takes a knowledgeable attorney to navigate these legal channels.
Discovery, by legal definition, is a specific stage in a lawsuit, but the whole suit process can be seen as a continual discovery of information leading to a conclusion.
Despite fine-print changes, mesothelioma suits follow this legal process, which includes the all-important discovery phase:
- Evaluation: The first step a mesothelioma attorney takes is evaluating a client’s case. That includes determining the stage the client’s illness is at, where asbestos exposure occurred, who the negligent party is and all available information supporting the case. The attorney’s evaluation determines if the case facts warrant filing a lawsuit or if recourse such as trust fund compensation is warranted.
- Filing: Once deciding to move forward with a lawsuit, the client files a complaint or petition with the court having jurisdiction over the case. The claim states currently known facts and describes why an offending party is liable for harming the complainant. The alleged wrongdoer is served a copy of the claim and must legally respond. Parties are now known as plaintiff and defendant.
- Discovery: The discovery phase is usually the longest and most important part of a lawsuit process. Courts remain at arms-length during discovery. Lawyers for the plaintiff and defendant interact and discover facts, share them within legal boundaries and attempt to reach an out of court settlement. Discovery entails having witnesses deposed or answer questions under oath. These statements are transcribed and become evidence if the matter goes to trial. Discovery also uncovers material evidence like documents, photographs, and physical objects. Expert witnesses like medical practitioners also give discovery facts.
- Trial, Verdict, and Appeal: Mesothelioma lawsuits rarely go to trial. However, almost all mesothelioma suits go through the discovery phase. Once discovered evidence is disclosed, the plaintiff and defendant examine the strengths and weaknesses in their case and negotiate a settlement.
Less than 5% of mesothelioma lawsuits end in a trial verdict. Even fewer are appealed.
Elements of the Discovery Process
American courts encourage lawsuit parties to independently settle without taking up time in the courts’ already overloaded dockets. That’s exactly what the discovery process is designed to do. There should be no surprises after discovery is complete. Theoretically, if the matter went to trial, no new information would arise.
Discovery process elements include defining opposing sides’ stories, disclosing important case facts, allowing exploration of additional information and, ultimately, allowing parties to reach a mutually agreed settlement. Facilitating settlements is a top priority in discovery phases but neither side is likely to offer much until all the facts are disclosed, examined and tested for authenticity.
The U.S. civil law discovery phase is not one single event. There are different types of discoveries in this process. Each goes to support the overall case facts and they’re used as legal tools to establish truth and seek a fair settlement.
Different discovery forms include:
- Initial Conference: Attorneys for the plaintiff and defendant(s) have an initial, face-to-face meeting to discuss the overall case. Most courts require civil lawsuit participants on both sides to develop and file a discovery plan. In it, they’re bound by certain time frames to work through the discovery phase and prepare for a trial. That’s provided a settlement isn’t reached during or by the completion of discovery.
- Requests for Production: Defendants and plaintiffs must give each other written requests for production of evidence. This can be physical evidence, documents, and even electronic information access. Some information may be privileged through lawyer-client conversations or spousal protection. Protected evidence needs to be approved by the court.
- Requests for Inspection: This is another discovery step where each side can apply to inspect the other’s physical premise, vehicle, holdings, and equipment. Provided the request has probative value, the court can order what amounts to a physical search warrant. Inspections can also be physical and mental evaluations of the parties.
- Requests for Admission: This is a time-saving device where one party requests the other admit to certain facts so they don’t have to be proven in court. This is also recorded in writing and serves to build a case foundation and allow for examination to focus on controversial issues.
- Expert Witness Evidence: If expert witnesses are used to support any evidence, they have to be qualified and court-approved. This can be doctors who diagnosed mesothelioma cases or medical technicians who produce evidence like X-rays and biopsy results.
- Interrogatories: These are adversarial meetings where witnesses are asked open-ended questions. This is much like trial testimony but is recorded in a lawyer’s office with counsel for the plaintiff and defendant present.
- Depositions: Witness depositions are the backbone of civil lawsuit discovery. These are non-confrontational, in-person communications where witnesses are under oath and answer pre-prepared questions. Depositions are also done outside of court but the proceedings are recorded and the transcript later becomes part of a trial.
Time Restrictions for Discovery
The Federal Rules of Civil Procedures sets specific time restrictions for moving lawsuits along. Attorneys for defendants and plaintiffs are held strictly accountable for making progress through every part of the process. They have court-assigned deadlines to meet and suffer consequences for failing to comply with the court’s timeline.
A lawsuit officially commences when the plaintiff files the claim petition. Every jurisdiction has a statute of limitations for restricting claim filing after a mesothelioma diagnosis is made. Most states have a two-year limitation. However, some are as short as one year. Other states allow up to six years.
Mesothelioma lawsuits tend to move faster than most regular civil lawsuits. The courts recognize how limited time can be for mesothelioma patients. Compassionately, courts encourage early settlement in mesothelioma suits and rarely hear trail evidence in these cases.
Most mesothelioma claims can be settled within a year with the majority of time spent in the discovery phase, provided an experienced attorney is representing the plaintiff.
Seeking Justice for Asbestos Exposure and Illness
If you have a history of working with asbestos-containing materials and you’ve been diagnosed with an asbestos-related disease, then you may be considering legal action. It’s important for all patients to know their rights and understand how negligent companies might be responsible for their diagnosis.
Asbestos litigation is an intricate and complex field of law. It requires competent and experienced law firms to properly represent victims. To learn more about your diagnosis and how it may have been caused by asbestos exposure, contact our Patient Advocates today.