The "discovery" phase of a slip and fall case—as the name suggests—is that part of a lawsuit where the parties investigate the facts to learn (discover) as much about the subject matter of the case as possible. Each party has several discovery goals in mind, including:
We begin with the basics of discovery, including when it starts, how long it lasts, and what happens if the parties disagree about what's discoverable. From there, we'll take a look at the different kinds of discovery you're likely to encounter in a typical slip and fall lawsuit.
Discovery typically begins after the plaintiff (the party who's suing) files a complaint and the defendant (the party being sued) files an answer. The process is governed by state or federal court rules and, as with all aspects of a lawsuit, is supervised by the judge who's assigned to the case.
Once a case is filed, the judge usually enters a scheduling order that sets preliminary deadlines for different parts of the lawsuit. Discovery in a typical slip and fall case might last for six to nine months, perhaps longer if the case is factually or legally complicated. This might seem like a long time but in the world of lawsuits, it's practically moving at light speed.
Discovery fights are common and can slow the progress of a case significantly. When the parties disagree about what's discoverable, they can ask the court to get involved. A party seeking discovery can file a motion to compel, asking the court to order the other party to respond. A party who's resisting discovery might ask the court to intervene by filing a motion for protective order.
Discovery takes several forms. In a slip and fall suit, you're likely to see:
Interrogatories are written questions that must be answered in writing and under oath. Your attorney will send interrogatories to the defendant. The defense lawyer, in turn, will submit interrogatories to you. Court rules usually limit the number of interrogatories each party can send. Most often, interrogatories are the first step in the discovery process, along with requests for production (discussed below).
The applicable court rules specify how much time you have to answer or object to interrogatories. In federal court, the rule is 30 days. The parties can agree to extend this deadline, and granting a reasonable extension request—say, a week or two—is considered a routine courtesy. The court can order that the time to answer be shortened or extended.
Because interrogatories and their answers are written, they're best suited for getting basic case information. As the plaintiff, you can expect to see interrogatories asking:
Requests for production are written requests for documents and things (or the opportunity to inspect documents and things) related to the lawsuit. Each party can send requests to every other party. While there's usually no limit on the number of requests for production a party can send, the court can restrict the number to protect a party from being harassed or unduly burdened.
As with interrogatories, court rules specify how long you have to respond to requests for production. In federal court, the deadline is 30 days. The parties can agree to more time, which is common. If the parties can't agree, the court can order that the response time be lengthened or shortened.
Your attorney will likely request documents such as incident reports, surveillance video of the area where the fall happened, witness statements, policies and procedures related to maintenance and inspection of the property, and maintenance records.
The defense lawyer will ask for your medical and employment records, financial statements and tax returns, witness statements, surveillance videos, and incident reports. Your lawyer will probably ask you to sign records releases so they can collect these documents in advance of the production deadline.
In lieu of (or in addition to) providing some or all of these documents, the other side might ask you to sign written records releases. You should follow your lawyer's advice here, but as a rule of thumb, never sign a blank release. Any release you sign should be limited to one record provider and should clearly indicate the time period covered by the release.
Learn more about medical records requests in an injury claim.
Requests for admissions are written requests, sent from one party to another, asking the recipient to admit or deny the truth of certain facts. They're usually sent late in discovery, and the idea is to pin the responding party down to a particular version of important facts. Once admitted, a fact doesn't have to be separately proved during trial.
As with other written discovery, the applicable court rules will spell out the deadline to respond to requests for admissions. Federal Rule of Civil Procedure 36 allows 30 days to answer. The parties can agree to extend the deadline and, of course, the court can order that a party have more or less time.
Requests for admissions usually address key facts of the case. For this reason, your lawyer will probably answer them on your behalf, after carefully scrutinizing each request for accuracy. Here are a few examples of the kinds of things you might be asked to admit, depending on the facts of your case:
A deposition is a question-and-answer session that usually takes place at a lawyer's office. Both parties and witnesses can be deposed. All answers are under oath and subject to penalties of perjury. Everything that's said gets recorded by a court reporter. Quite often, depositions are videotaped, too.
Your lawyer will be present. The defense lawyer will ask you questions. If your lawyer thinks a question is improper, they'll object to it. As soon as your lawyer starts talking, you stop. Don't start talking again until instructed to do so by your lawyer, and follow any instructions they give you.
As the plaintiff, yours will certainly be one of the first depositions in the case. Here are some other people who will be deposed (called "deponents"):
Your deposition will cover a wide range of topics, including many of those addressed in interrogatories and requests for production of documents. The defense lawyer will probably start with background questions, quickly review your education and work histories, and ask about things like your physical and emotional health on the day of the fall.
From there, expect these topics to be among those covered in painstaking detail.
Before your deposition, the defense lawyer will have scoured your medical records, searching for ways to poke holes in your claim. A detailed exploration of your health history is, as a rule, fair game in your deposition. The questions are likely to be invasive, if not downright embarrassing. The defense lawyer is doing this on purpose, to see how you appear and respond in the face of stressful, anxiety-producing circumstances.
If you've had injuries in the past, whether from falls or other trauma, the defense lawyer will spend lots of time asking about those injuries and how they happened. If you made insurance claims or sued for past injuries (including workers' compensation claims), expect the defense lawyer to know all about those claims or lawsuits. They will have done their homework quite thoroughly.
The defense lawyer might start by asking you to give a narrative description of what happened. Then they'll double back and ask follow up questions about every aspect of the fall and what caused it.
For example, if you fell down stairs, questions could include:
These questions are just the tip of the iceberg. A deposition can be a grueling, exhausting experience. Chances are it'll take at least a half-day to complete. Don't be surprised if you're there all day long.
A lengthy set of questions will focus on your injuries and damages. The defense attorney will ask about your diagnoses, prognoses, medical treatments, medications (both prescription and over-the-counter), medical bills, health insurance, time away from work, and lost wages. They'll also ask about how the injury affected your home life and relationships (including sexual relationships), pain and suffering, emotional distress, loss of enjoyment of life, and much more.
Here are some handy deposition tips. While they're couched in terms of car accident claims, the basic ideas apply regardless.
Learn more about personal injury damages.
The defense lawyer might ask that you go to a doctor for an independent medical exam (IME). Don't be misled by the name. An IME isn't independent, and it probably won't be like any medical exam you've had before.
The doctor doing the exam will be one selected by the defense lawyers and paid for by the defendant's insurance company. The goal of an IME isn't to provide an objective, unbiased medical opinion about your injuries, their cause, or your prognosis. Quite the opposite.
The defendant's insurer probably uses this doctor because it knows the doctor will write a report that favors the defense. The doctor's job is to provide a medical basis to dispute your injuries, how they happened, and your diagnoses, treatments, and prognoses.
Discovery is the key to a slip and fall case. With the right facts and information, you can build a winning narrative that will help to maximize the value of your claim. But the opposite is just as true: The wrong facts and information will kill your claim outright, or reduce its value significantly.
Discovery isn't something you want to try on your own, without legal help. An experienced lawyer knows the court rules, how and where to look for both helpful and harmful information, and how to weave what you've discovered into a compelling story that puts you in the best possible light.
When you're ready to pursue your slip and fall case, here's how to find a lawyer who's right for you.