Discovery: Investigating your Case

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At the onset of your medical malpractice case, all you have as a plaintiff’s attorney is an argument. You must buttress all of your claims with evidence such as documents, testimony and other tangible and intangible items. However, the evidentiary building blocks you need will normally be held by the other party, and that party will obviously be hostile to your possession of these things. The formal process by which you acquire this information is known as discovery. In discovery, there are a variety of tools you can use and all of them are governed by Illinois rules and officiated by the presiding judge. Here are a description of the most common discovery tools.

1- Interrogatories

Interrogatories are written questions drafted by one party and required to be answered by the other. There can only be 30 (including subparts) and the receiving party must respond in 28 days. The receiving party normally will either answer or state that they do not have enough information to answer but, in any event, they must swear to the truth of their responses. Also, they must update their answers as they become stale. As a plaintiff’s lawyer in a medical malpractice case, use interrogatories to narrow the scope of your discovery investigation. Ask questions to draw out what arguments they might make, evidence they might use, or witnesses they might depose. The Supreme Court of Illinois had approved draft forms of interrogatories medical malpractice cases. For more information, see Illinois Supreme Court Rule 213. Here are some sample interrogatories:

2- Depositions

Depositions are a crucial discovery tool in any medical malpractice case. They allow you to, under oath, interview opposing parties or other witness for up to three hours. Note, they can also be used for evidentiary purposes but you must first distinguish what type of deposition it is ex ante; otherwise, it will be assumed to be a discovery deposition. In medical malpractice suits, use depositions to gain as much information as possible from the interviewees. However, use this time to also evaluate how credible they would be if called to testify at trial because credibility is just as important as testimony when rendered to a jury. Also, follow up as much as possible in depositions to narrow the scope of their answer. This is your time to put them on the hook, so do not let them squirm off of it. For more information, see Illinois Supreme Court Rule 202-207 and 210. Here are some sample depositions:

3- Requests to Produce

Requests to produce might be the most searing spear in your arsenal when conducting discovery in medical malpractice cases. Pursuant to Illinois Supreme Court Rule 214, you can ask the opposing party for relevant documents, items, information, and even access to property. That party then has 28 days to grant the request or object. Normally, objections will either be based on relevance or privilege, but in any cases, the judge will decide if the objection is warranted or if the request should be granted. If granted, the party producing must supplement their answer in the future as necessary. In medical malpractice cases, it is important to ask the opposing party to produce items that can be used to bolster their case, and these may include such as the following:

  • Medical records and doctors notes;
  • Statements given;
  • Prior litigation records;
  • All other documents related to the case.

Here are a model and sample requests to produce for a medical malpractice case but feel free to modify it for your particular circumstances:

4- Requests to Admit

After interrogatories, maybe the best way to narrow the scope of a case and hone in on the opposing party’s theory is the request to admit function within discovery. These ask the defendant to admit whether statements and documents are true and genuine with respect to the case. The plaintiff can only ask 30 questions and the defendant must answer within 28 days. However, whatever requests to admit are not answered within that timeframe are deemed to be true. In medical malpractice cases it is important to use requests to admit to go after the defendant’s scienter, control, liability, and damages regarding the case. For more information on requests to admit, see Illinois Supreme Court Rule 216. Here is a model to be used in medical malpractice cases but feel free to customize it to your particular case:

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