Discovery in a Slip and Fall Lawsuit

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:

• to find facts supporting their claims or defenses, or that might poke holes in the other side's claims or defenses
• to learn about the evidence other parties might rely on if the case goes to trial, and
• to support their position during settlement negotiations.

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 Basics

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
• requests for production of documents and things
• requests for admissions
• depositions, and
• an independent medical examination of the plaintiff.

Interrogatories

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).

How Long to Answer?

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.

What Do Interrogatories Cover?

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:

• for your full birth name, and any other names or aliases you've ever gone by
• where you live, who lives there with you, and how long you've lived there
• where you've worked for the past 15 years, your job titles and duties, and who supervised you
• about your education history, usually going back to high school
• about your medical history, including all non-routine illnesses and injuries you've suffered, who treated you, and the treatments you received
• about any falls you've had in the past, where they happened, what injuries you suffered, where and how you were treated for your injuries, and whether you made a complete recovery
• other than your lawyer, the names and contact information for all persons with whom you've discussed the fall and your injuries in this case
• for the name and contact information of any witnesses to your fall, and whether you got a written or oral statement from them
• what kind of footwear you had on at the time of your fall
• whether you saw the thing that caused you to fall before you fell, any precautions you took to avoid falling, and where you were looking immediately before you fell
• for the names and contact information of all doctors, hospitals, and other health care providers who treated you for your injuries
• whether you missed any time from work, hobbies, recreational activities, housework, or other activities of your daily life, and
• whether you've made a full recovery from your injuries and if not, what ongoing or permanent injuries or disabilities you claim to have suffered.

Requests for Production

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.

How Long to Answer?

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.

What Do Requests for Production Cover?

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

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.

How Long to Answer?

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.

What Do Requests for Admissions Cover?

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:

• you saw (or didn't see) what caused you to fall before you fell
• you were looking (or weren't looking) at the ground in front of you immediately before you fell
• you were looking (or weren't looking) at shelved merchandise (or something else) immediately before you fell
• you were (or weren't) wearing prescribed corrective lenses at the time you fell
• your medical history includes the same kinds of injuries you say you suffered in this case
• you've fallen and been injured one or more times in the past, and
• it was raining, misting, snowing, sleeting, or icy on the day you fell.

Depositions

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.

Who Gets Deposed in a Slip and Fall Case?

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"):

• the defendant or, if the defendant is a company, the defendant's company representative or a manager
• all those who witnessed your fall, came to your aid on the scene (including first responders), or saw the scene before or after you fell and before the scene was altered or cleaned up
• anyone who cleaned or repaired the scene after your fall
• any others who claim to have fallen in the past in the same area you did
• friends, family members, and co-workers who know about your health history, the fall, and your injuries, treatments, or recovery
• all health care providers who treated you for your injuries, or who have treated you for past injuries similar to those you suffered in this fall, and
• if applicable, all expert witnesses listed by the parties.

What Do Depositions Cover?

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.

Medical History

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.

Past Falls and Other Traumatic Injuries

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.

How the Fall Happened

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:

• What shoes or footwear were you wearing?
• Were you carrying anything?
• What was the size and weight of the thing you were carrying?
• Did the thing you were carrying obscure your view of the ground in front of or around you?
• How did you lose your balance?
• Did you slip, trip, or did something else happen?
• Was there something on the stairs that caused you to slip, trip, or lose your balance?
• What was the appearance of the substance you say caused you to slip, trip, or lose your balance?
• Which foot slipped first?
• How did you slip?
• How wide were the stairs?
• How deep were the stairs?
• Were the stairs carpeted?
• Did your entire foot fit on the stairs?
• Where were you looking while you were going down the stairs?
• Were you talking to anyone as you went down the stairs?
• Were you using your phone to text or talk as you went down the stairs?
• What part of your body hit the ground first?

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.

Your Injuries and Damages

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.

Independent Medical Exam (IME)

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.

Get Help With Your Slip and Fall Case

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.