Once the Complaint has been filed and the defendants have been served with Summons (that means a copy of the Complaint )the next phase of the litigation is known as discovery.
Discovery means each side to the litigation is entitled to prepare written questions called interrogatories to determine the facts of the case. Thereafter, each side of the case, in Illinois, is allowed to conduct depositions. These are questions and answers asked of the parties and witnesses to determine what their testimony will be. Typically, the plaintiff is the first party deposed. The plaintiff’s deposition is conducted by defense attorneys. The plaintiff’s attorney should prepare his or her client for this deposition. That means reviewing the interrogatories, reviewing the facts, reviewing the theories of liability, reviewing the theories of defense, and reviewing any weaknesses in the plaintiff’s case. Should there be a weakness in the case, it must be discussed with your attorney prior to your deposition. Should there be any skeletons in the closet — e.g. tax issues, criminal issues, drug or alcohol issues, multiple litigation issues, etc. — they should be discussed with your attorney prior to any depositions. These skeletons are not unusual.
A party should assume that in this era of Facebook and the internet, the opposing counsel will know about every skeleton in your closet prior to your deposition. Opposing counsel will also have access to your medical records. Frequently these medical records include material or data that is not favorable to a party and this unfavorable data or material will be the subject of questioning during the deposition. Accordingly, it is important to go through all of the positive and negative data involved in your case.
Once the plaintiff’s deposition is conducted, the plaintiff’s attorney has an opportunity to depose the defendant doctor, physician, nurse, or health care provider. All party defendants are deposed by opposing counsel. Nurses, radiologists, and consulting physicians might also be deposed during the discovery phase of this litigation.
After all fact witnesses are deposed the discovery phase shifts into the discovery of expert opinion witnesses. Each side to the litigation will have expert witnesses rendering opinions supporting their theory of the case. Opposing counsel will have an opportunity to review these opinions in writing, in expert witness interrogatories, and in discovery depositions. These discovery depositions will explore the opinions, challenge the opinions, present alternative opinions, and cross examine the qualifications of the experts and any bias or interest of said expert.
Frequently, a collateral attack to that expert is available. That means collateral issues may impact the credibility of the expert witness. Examples of collateral attacks of an expert witness are:
- The experts makes over a million dollars in his career as a testifying expert
- The expert only testifies for defendants
- The experts has had drug or other personal issues
- The expert has testified inconsistent with his testimony in this case and that testimony was under oath and in writing
Frequently, a collateral attack can be more powerful then a substantive attack.