Why Choosing the Right Personal Injury Attorney is Important
Managing Intrusive Defense Discovery Tactics to Achieve the Best Potential Outcome in Your Case
As a Los Angeles personal injury lawyer, I often get calls or emails from my clients about what to expect during the litigation process. “Dylan, we’ve never been a plaintiff in a personal injury lawsuit before?” “I don’t know what to expect” or often “Why is the defense lawyer doing that?” or one of my favorites “Do I have to let the defense subpoena my medical records and get access to all my private information?.”
Well, for starters, when you hire my firm to represent you on a case, you can ask these types of questions, or whatever else comes to your mind, and you can count on getting a prompt response from me personally by text or email. I know this process is foreign to most people, and for that reason, it is fraught with anxiety, uncertainty and maybe even a little mystery.
But it doesn’t have to be.
The first thing you need to understand is that our foremost role is to educate the other side about why we feel the case has value. From the very beginning, all you are to the insurance company is a claim number, and possibly a police report. They don’t know who you are, what kind of a witness you’ll make, whether you’re sympathetic or a “good person.” It won’t be for many months into a case that the defense lawyer even gets to see you in person at your deposition to put a face and personality to a claim number.
But before you sit for a deposition, the defense gets to subpoena your medical records, including records from all of the medical providers you have seen since the date of your injury and in many cases records before your injury from your general family doctor. And for the most part, they get to do that, because when you put your physical condition at-issue in a lawsuit, the defense gets to examine your state of health before the injury occurred. Did you have complaints in the same part of the body? Did you have other issues that were impairing your overall health?
“Dylan, I just got word from my family doctor that the defendant served a subpoena for all of my medical records. Can they do that?”
Rest assured, I get copies of every subpoena that is served on any medical provider you have seen. That’s the law. When I get the copy, I read through it and try and see if it is fairly limited in both time and substantive scope. Sometimes I get subpoenas asking for “any and all records for 20 years before the injury.” Such a request is overbroad, prompting me to call or draft a letter to the defense lawyer to negotiate a subpoena more narrow in scope that is tailored to the issues in the case. If he or she does not relent, this may require we submit the issue to the judge to decide. One thing you can be sure of is that the defense doesn’t get to do anything without proper notice to our Firm so we can police the process, and we take that role very seriously.
“Dylan, my employer just got served with a subpoena for all my personnel records. Can they do that?”
If you are making a claim for lost wages, then the short answer is yes. In some cases, the defendant may get to examine whether you were making the income that you claimed, or whether you had taken time off on disability for another injury. However, here too, I get to examine any subpoena in advance and will take action if the records sought are not tailored to the issues in your case.
It is important to understand that insurance companies know that most people do not like their “business” being looked at under a microscope, and they also know that a certain percentage of plaintiffs with legitimate claims will decide not to pursue a case further if it means that the defense lawyer gets to see all their private medical and employment records. We appreciate this fully, and we also understand that it can be a legitimate anxiety-producing event. When you hire my firm, we do our best to walk with you through the entire discovery process, and if the defense lawyer oversteps his bounds, we will push back. At the end of the day, our job as personal injury lawyers from Pollard | Bailey is to allow the defense to verify the value of your claim while also minimizing efforts to utilize the discovery process to weaken your resolve to prosecute your case to the point necessary for the best potential outcome to be achieved (whether that be through a settlement or a trial).
In my next blog entry, I will write about the time commitment it takes to successfully pursue a personal injury lawsuit and what you can expect to have to contribute time-wise to make sure your case is a success.