Modern litigation relies heavily on something called "discovery" (sometimes supplemented by "disclosure"). By whatever name, it is essentially an exchange of information; each side sends out questions and requests, and has to answer the same from the opponent(s). The goal is to bring to light all of the facts, witnesses and tangible or documentary evidence that otherwise would appear at trial. When that happens, experienced attorneys can evaluate a case and, if both sides are reasonable, settle it before trial. The purpose of this article is to provide guidelines for discovery in a dog bite case.
Discovery begins with developing a thorough understanding of the causes of action pled in the case. In some states, a dog bite statute imposes liability on dog owners, so you need to know each of its requirements for liability. In a one bite state, look at the jury instruction for dog bite liability, and note each element it refers to. A case based on negligence per se or a presumption of negligence requires parsing the ordinance or statute that the defendant allegedly violated.
The first thing you draft will be the requests for admissions. There are two purposes to the first request for admissions. One is to establish each factual element required by each cause of action in your case. It is a simple matter to draft admissions of fact: look closely at the jury instruction, the dog bite statute, the ordinances and statutes, and feel free to borrow their language. Ownership of the dog that did the biting is one of the most important facts the defendant should admit.
The other goal is to confirm the genuineness of your documents and other tangible evidence. If you have gathered medical records and other key documentary evidence, requests that the defendant admit the genuineness of each. It is especially important to the defendant to admit the genuineness of the text of any ordinance that you are relying on, as well as the effective date thereof. But the medical records, Google maps, photographs of the scene, and all other written and documentary evidence should all be the subject of admissions.
After drafting the admissions, begin working on the interrogatories. They fall into several groups, each having a different purpose. The first three to get out of the way are the ones that ask why the defendant denied key allegations of the complaint, what the basis of each affirmative defense is, and why defendant denied any of the requests for admissions. The pattern for these and all interrogatories is that you ask for the facts, persons having knowledge of those facts, and documents that relate to those facts.
The second group of interrogatories asks the defense about specific allegations made in the answer to the complaint, or in communications from the insurance adjuster and defense attorney. For example, if the adjuster mentioned that someone other than the defendant was the actual owner of the dog, you should ask an interrogatory about it. Again, the pattern is to ask for the facts on which the statement was made, identity of people having knowledge of those facts, and documents that relate to those facts.
The third group of interrogatories are those which reveal facts that will help your case. They range from questions about the dog (complaints people voice about it, its weight, what they did with it after the attack on the client, etc.) to inquiries about possible witnesses such as the veterinarian for the biting dog, the gardener, the groomer, etc. You need to work from a good set of "rogs" that is thorough and covers everything. If you have not already developed one in your office, then consider purchasing Attorney Phillips’ set, called Dog Bite Litigation Forms for Plaintiff’s Attorneys.
When planning how the case shall unfold, plan on discovery disputes that will add several months to each exchange. Expect the defense to make absurd objections and give you nonsensical answers, and plan to bring a motion to compel further responses. Usually the defense asks for an extension of time to make their initial response, as if it actually takes six weeks to come up with boilerplate objections and misinformation. After receiving the responses, allow another week to review them with the lead attorney. Upon identifying everything objectionable and disappointing in the responses, it will take at least two weeks for the attorneys to attempt to work out compromises, and a while longer to receive supplemental responses. After all that, you still might have no choice but to file a motion. All of this takes time, so you must be prepared for it when you establish the timetable for your case. As a rule of thumb, figure on receiving responses 90 to 120 days after you serve a round of discovery. It is even possible that the defense will violate the court order requiring further responses, so you might have to go through the process again, meaning another conference with the attorneys, and another motion.
When both sides have exchanged their first round of discovery, and the answers are as good as they can be, it is time to take depositions if they are really necessary. It is not always necessary for the plaintiff to take the deposition of the defendants, or even the witnesses. You do not want to show too much of your case, but on the other hand, you cannot risk the possibility that a key witness will move away or die. The lead attorney has to make the decision as to which depositions to take, if any. The Dog Bite Litigation Forms contain thorough, time-saving deposition outlines for a variety of witnesses, including the dog owner, a child witness, adult "fact witnesses," so-called "damages witnesses," and others.
If no depositions are required, you should insist that the other side schedule a defense medical examination right away. You cannot force them to do it, and in fact they usually wait until the case is about to be tried. In many cases, however, they have no intention of examining the victim, and it is very helpful to know that they do not want to do it.
After completing all the foregoing steps, try to get the case into mediation. The information exchanged by the parties by this time should be enough for everyone to have a good idea of the legal issues and the value of the case. Do not ever consider it to be a sign of weakness to take measures to end the case without a trial; you were retained to get money, not specifically to go to trial.
Periodically one should serve supplemental discovery in states that do not permit "continuing interrogatories." In California, one merely has to serve a single supplementary interrogatory and a single supplementary demand for production, each simply asks the defense to provide such additional information and documents as have turned up since their responses to the prior round of discovery.
Basically that's all there is to it. As you can see, discovery in a dog bite case is not complicated, but nevertheless must be thorough. There certainly are cases where hundreds of interrogatories are required. It is not necessarily difficult to draft them if you have an automated method such as that provided in the Dog Bite Litigation Forms. An automated system basically requires you to identify the specific facts, issues and documents, and then the system generates pattern interrogatories and demands for production. In Mr. Phillips’ cases, there sometimes are hundreds of interrogatories, but that is a rare occurrence.