Some attorneys may shrug off the written discovery phase to just check a box in order to move on to depositions. However, a well-prepared Plaintiff will have his case trial ready once written discovery requests are received, and this should be an opportunity not to give your case away, but to present a well-developed case and to drive up the value of the claim.
Your client’s background
Yes, these questions may seem tedious, and some questions may not even be able to be answered if you represent the personal representative of the estate of a victim of medical malpractice, but it helps develop your case for trial. Why does it matter whether the decedent took online classes when obtaining a GED? Why does it matter how long he or she worked at the local mill? The answers to these questions will help develop theories on lost future earning capacity.
Why does it matter when and where they were married? The answers to these questions solidify non-economic damages for the loved ones who remain here to pick up the pieces.
Special and Economic Damages
By this phase of the case, you should already have certified copies (with bates numbering) of all medical records, billing, funeral expenses, tax and financial information, and your claims for all special damages should be developed. An answer of “will supplement” telegraphs to the defense that you aren’t prepared. When defense attorneys receive organized records and exhibits with medical summaries in the written discovery phase, they know they’ll be facing a prepared Plaintiff should the case go to trial.
Non-Economic Damages
This part of written discovery does require some knowledge of state and local rules, knowledge of the trial judge’s disposition, and finesse. Do you list a figure for the non-economic damages you’ll be seeking? Are you required to by law or local rule? Will the presiding judge allow you to withhold that figure until trial if that’s your plan? Does it make practical sense for a strategy to throw out a figure? The answer to this depends on your style and whether you have properly developed your claim for non-economic damages. If you are concerned that the defense may use this figure against you in opening statement and throughout the trial, be prepared with a strong response.
Listing witnesses and exhibits
This should be an area where you are able to list all of your potential fact witness’s names, addresses, telephone numbers, and anticipated testimony with ease. Of course, these witnesses should have already been interviewed by this phase of the litigation. Most exhibits can be pre-marked or referenced by their bates stamp number.
Expert witnesses
This is another area that will require some knowledge of state and local rules, knowledge of the trial judge’s disposition, and it also depends on personal style. Are you ready to designate your expert(s)? Are you required to at this point? If you do decide to designate experts at this point, go ahead and list the expert’s opinions as well as each fact that shows a violation of the applicable standard of care. This will be the area in written discovery that is the most important, so spend additional time editing and wordcrafting this these responses until you are comfortable submitting it to the defense.
For these reasons, it is imperative to hire a veteran medical malpractice litigator and skilled medical malpractice lawyer relies on who has been involved in medical negligence cases for years.
