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In Good Form

Preparing for Discovery From the Defense

By Ellsworth T. Rundlett

September/October 2008 Table of Contents


All of the highlighted forms discussed in this article and listed below are available for instant download. Click the form name to obtain an easily modifiable Microsoft Word version of every document.


Any suit filed on behalf of a client is going to generate one of two things — a settlement offer or an answer followed by discovery. Based upon my 30 years of experience, the more likely candidate is number two — an answer followed by discovery from the defense.

Before your attorney files suit and sends it for service upon the defendant, I recommend sending the client the following discovery requests indicating that the defense is likely to send similar documents after an answer has been filed. The client should be instructed to answer each and every question as carefully as possible, and then the legal team can discuss the client’s answers.

How and When to Use Client Discovery Requests

In most cases, the plaintiff’s attorneys file suit, receive discovery from the defense counsel, beg for extensions and then discover information that is detrimental to the plaintiff’s case. Such potential problems include a pre-existing injury or condition, a prior insurance or workers’ compensation claim, a liability problem, a witness problem, or any number of negative factors that could damage or even destroy the case completely.

I have found that most clients either neglect or intentionally refuse to disclose damaging information while the claim is in progress and before suit is filed. Then, after suit is filed and discovery begins, ugly moles and warts appear where there once was a picture without blemish. Defense attorneys know this and so do insurance carriers. They are well aware that either your legal team, your client or both might have failed to disclose damaging information that will benefit the defense during the processing of the claim.

This is why insurance carriers often offer nominal settlements in cases with fairly high medical bills. They realize that with formal discovery, it’s quite possible, in fact, probable, that the defense attorney will find problems in current and past medical records. Insurance carriers and defense attorneys also know that clients, and sometimes their attorneys, will not send damaging medical information, such as a report indicating a prior condition or prior injury. Therefore, they will request all medical records from every source and every provider that has treated the client within a certain period, usually 10 or more years. Furthermore, with interrogatories, they will be able to ascertain just how strong your attorney’s liability case is by asking your team to divulge witnesses, photographs, theories of liability and other useful information that could assist the defense in damaging the case.

The bottom line is this: Discovery by the defense almost always does something to damage or limit the success of the case, which is why I recommend sending clients discovery ahead of time. The discovery requests can be given to the client at several different stages of the case and the legal team can decide the time that would be best for each case.

During settlement. Show the discovery forms to the client during settlement discussions to let the client know just what kind of information the defense will be able to obtain during the discovery period and before trial.

Before suit is filed. Send the discovery forms to the client while the case is being processed to make sure that your team has all of the information, including damaging information, necessary to evaluate and settle the case before suit is filed.

As soon as suit is filed. Send the discovery forms to the client at the time the suit is filed so that answers can be prepared during the appropriate time frame for responding to the defense’s discovery. Sending these to the client before your team receives them will avoid having to ask for extensions.

Use the interrogatories and requests for production discussed in this article in any case your team might handle on behalf of a client who has been sued for personal injury and who might not be insured, or on behalf of an insurance company that might ask your team to represent a client in a case.

It’s important to realize that defense lawyers expect discovery requests to be taken seriously. If your team tries to “blow them off” with cute responses that are really nonresponsive, count on a Motion to Compel with appropriate requests for sanctions.

Judges almost always will require a valid response to virtually all of the interrogatories and production requests that are contained in this article. Prior medical records from the client are absolutely fertile and fair ground for discovery. It’s virtually impossible to hide a previous injury, a pre-existing condition or other damaging medical information. Defense attorneys have been through this situation hundreds of times and know what to do if they believe your team is trying to hide information.

Checklists for Handling Major Case Weaknesses

When your team and the insurance company have significantly different opinions of the settlement value of the case, it’s wise to reconsider the major weaknesses of the case before filing suit. Some of these weaknesses can be alleviated before filing or can be minimized during the pretrial period. The goal is to eliminate the problems, lessen their potential effect at trial, or recognize that the problems can have a substantial impact on the ultimate settlement value or jury verdict. In any event, these weaknesses should be discussed in detail with the client before filing suit.

Checklist for Dealing With Pre-Existing Injuries or ­Pre-Existing Conditions [§512.1.2]. In my opinion the most significant weakness or problem in a small- to medium-valued case is a preexisting injury involving the same area of the body. If the client’s injury preexisted the subject incident, the legal team has the difficult burden of establishing the extent of any aggravation and its causal relationship to the incident. In 20 years of practice in personal injury law, I find this to be the most often-used attack by insurance adjusters. On the other hand, if the client had a preexisting injury and recovered from that injury, your team must establish that a whole new injury took place and that it was caused by the subject incident. Again, the burden is quite difficult.

Checklist for Dealing With Subsequent Injuries to the Same Parts of the Body [§512.2.1]. Subsequent injuries or incidents create problems when the client sustains a compensable injury in the subject accident, and subsequently injures the same area of the body.

Checklist for Dealing With Subsequent Injuries to Other Parts of the Body [§512.3.1]. This problem is similar to the one raised above regarding injuries to the same parts of the body. The defense attorney will try to establish that the later incident, not related to the lawsuit, must have aggravated the present injuries. The goal of the defense is to obtain an instruction from the judge regarding a nonrelated intervening event, which could result in a closed-end period of responsibility.

Checklist for Dealing With Alcohol Consumption [§512.4.1]. Alcohol use by the client can be extremely damaging if the alcohol consumption is relevant to the issue of liability. If the case is a premises liability case, such as a slip-and-fall, consumption alcohol by the client is a major problem. If the client was the driver in an automobile collision and consumed alcohol before the incident, that fact can be fatal to a favorable settlement or jury verdict. Another problem occurs when an intoxicated passenger rides with a drunk driver who causes a single-car crash. In such cases, settlement often is impeded by the passenger’s alcohol consumption.

Checklist for Dealing With Prior Criminal Record [§512.6.1]. Evidence of a prior criminal record can have a major impact on the jury. Crimes involving dishonesty usually are legitimate impeachment evidence. Check your state’s rules of evidence to see if they follow the Federal Rules of Evidence, which allow for the introduction of former crimes for impeachment purposes. Also see rule 609 of the Federal Rules of Evidence.

A Lesson Learned

A number of years ago, we represented a gentleman who had sustained a rotator cuff injury after falling from the porch of a home that he rented with his family. We tried to settle the case with the insurance carrier, who offered only a nominal settlement. Suit was filed and defense counsel engaged in aggressive discovery, including depositions, interrogatories and requests for production of documents similar to the ones listed at the beginning of this article. One of the primary questions from defense counsel was whether or not the plaintiff ever had sustained a prior injury or treatment to the subject shoulder. The plaintiff denied any former injury or treatment. It’s important to note that both he and his wife were excellent record keepers and had excellent memories of events in their lives. 

We completely believed our client when he told us that he never had a prior injury to the subject shoulder. We made it very clear to him that even if he had a prior injury to the shoulder, the fall from the porch caused a new injury and would, therefore, be compensable. In other words, we told him it would not benefit him to try to hide a prior shoulder injury. The client continued to deny any prior treatment or injury even though he had been an avid tennis player and an avid trombone player.

Defense counsel went through the medical records very carefully and discovered eight physical therapy sessions for treating the same shoulder five years prior to the subject injury. This information was devastating. Our client had, both verbally and in his interrogatories, denied any prior treatment whatsoever. The result was that we settled the case for pennies on the dollar because we knew a jury would doubt the testimony from this plaintiff.

The moral is your team absolutely must know about the weaknesses in the case before blindly jumping into litigation. Discovery documents similar to the ones discussed in this article are likely to be sent to your attorney within weeks or even days.



Ellsworth T. Rundlett is a past president of the Maine Trial Lawyers Association. He is the author of “Maximizing Damages in Small Personal Injury Cases” (www.jamespublishing.com or (800) 440-4780), from which this article is excerpted.


Visit the Forms Directory page for links to the forms discussed in this article, as well as over 100 forms relating to a variety of other topics.



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