Category: Discovery

What to Expect in a Deposition in a Personal Injury Case?

Posted by drpadmin on

Depositions in Las Vegas Personal Injury Lawsuits

Many clients are nervous, if not downright scared, of being in a deposition. Most people are never involved in a deposition until they get injured in an accident, and their accident case goes into litigation. Many don’t know what’s going to happen, what questions are going to be asked, and even if a judge is going to be there. With a combined total of 50+ years of experience, the Las Vegas car accident attorneys at D.R. Patti & Associates know that preparing the client for a deposition includes explaining the process, answering the client’s questions, and letting them know there is nothing to be scared about. This blog demystifies the deposition in a Las Vegas personal injury case.

What is a Deposition?

A deposition is an investigatory tool in lawsuit that the parties can use to learn and record a party or witness’ anticipated trial testimony. A good trial attorney will want to know what the other party knows and the evidence that party intends to use well before a trial. As explained in another blog about discovery during litigation, the law does not like surprises at trial. Trial attorneys also don’t like surprises. Also, when a person is represented by an attorney, the opposing party’s attorney cannot speak to that person without their attorney present. So, the law allows the other party to ask questions of the plaintiff with the plaintiff’s attorney present.

Trial attorneys use depositions to impeach a deponent at trial. Impeach means to call into question the truthfulness of a person. In other words, a trial attorney uses a deposition transcript to show that someone is lying or doesn’t know what they’re talking about. That is impeachment.

Are Depositions Common In Personal Injury Lawsuits?

Only a fraction of all personal injury cases end up in litigation. Once a personal injury case does go into litigation, however, it is likely that depositions will be taken. Depositions generally occur even in Las Vegas car accident cases that go into the Mandatory Arbitration Program. Attorneys use depositions to conduct their investigation and to prepare for trial. Attorneys generally do not like going to trial without knowing what the parties and the witnesses will say. Attorneys cannot speak to the other party in the case without an attorney present. Nor can attorneys send an investigator or any one on their behalf to talk to the other party. That is unethical and prohibited by the Nevada Rules of Professional Conduct. So, to find out what a party’s testimony will be, the opposing counsel will generally want to take that party’s deposition.

While an attorney can speak to witnesses who are not represented by an attorney, trial attorneys prefer to have the witnesses’ testimony recorded. By recording a witness’ testimony in a deposition prior to a trial, an attorney can use the transcript of the deposition to impeach the witness’ testimony.

Who Can Be Deposed?

Unlike some other tools of discovery which can only be used against another party, depositions can be taken pretty much of anybody, including the parties. The plaintiff (i.e., the person who brought the lawsuit) will more likely be deposed. The party who is sued is called the defendant. The plaintiff’s attorney may depose the defendant prior to the trial. This is particularly true if there is a dispute about who or what caused the accident or whether the defendant was negligent.

The doctors and other health care providers who treated the plaintiff can also be deposed. However, it’s more likely that only some of the doctors and witnesses will be deposed.
Witnesses to the accident can also be deposed. People who are close to the plaintiff and have information as to how the accident-related injuries affected plaintiff may also be deposed. This could include a plaintiff’s spouse or any adult residing with them.
If the plaintiff has lost income or wages, the plaintiff’s employer may also be deposed.
Lastly, the parties’ expert witnesses will also likely be deposed.

Who Else Will Be At A Deposition in A Personal Injury Lawsuit?

The deponent and the attorneys for the parties in the lawsuit will, of course, be at the deposition. The party or witness who is being asked questions (i.e., the deponent) will, of course, be there. A court reporter will always be at the deposition, and sometimes, a videographer.

The court reporter types up all the questions and answers and will create a transcript. The person who is being asked questions in a deposition is called the “deponent.” The deponent will be given opportunity to review the transcript of the deposition and to correct any mistakes in the transcript. The deponent will usually be reminded that any changes he or she makes to the transcript may be used to impeach him or her at trial.

In some cases, a videographer may also be present during a deposition. Some trial attorneys prefer to play back clips from the video of the deposition to a jury in a personal injury trial. A video has more impact to a jury that reading a transcript.

A judge will not generally be present during a deposition. In Nevada, however, the attorneys may call the judge presiding over the case or the Discovery Commissioner during the deposition. This happens when the attorneys have a dispute that needs to be resolved before the deposition can continue.

While the parties to a lawsuit may also be present during the deposition, other witnesses who are expected to testify at trial cannot be present.

What Happens During A Deposition?

A deposition begins with the court reporter swearing in the deponent. The deponent takes an oath to tell the truth, and this is the same oath a person will take if they were to testify in trial. The attorney who set the deposition and will be asking the majority of the questions then gives his “admonitions.” That’s what attorneys call them, but they really are just the rules of the deposition. The following are some of the common admonitions:

  • Reminder to the deponent of his oath to tell the truth
  • Answer all questions verbally. The court reporter has difficulty recording gestures, such as nodding or shaking of the head.
  • Let the attorney finish his or her question completely before answering. Basically, don’t speak over each other.

If the deponent answers a question, the attorney will assume the deponent understood the question.

What Questions Will They Ask To A Personal Injury Plaintiff?

In a deposition of a personal injury plaintiff, the topics usually covered are:

  • The plaintiff’ background – this includes the plaintiff’s employment and educational history, certain prior convictions, past addresses or living situations
  • How the accident happened, what led to it, and what happened immediately after the accident – In a car accident case, the defense attorney will usually want to know where the plaintiff was going to at the time of the crash and where the plaintiff came from. The defense attorney will also want to know whether the plaintiff spoke to the defendant at the scene and what they talked about.
  • The plaintiff’s injuries and medical treatment – Covering this topic is usually where the defendant’s attorney may get tricky. The defendant’s attorney will usually already have reviewed the plaintiff’s medical records. He or she may even have the medical records in front of him or her during the deposition. The attorney generally already knows what the medical records say. The defense attorney’s hope is that the plaintiff says something different than what the medical records say.
  • Any limitations in plaintiff’s activities – An aspect of plaintiff’s damages is lost enjoyment of life. So, the defense attorney wants to know what aspect of plaintiff’s life has been affected by the car accident injuries. Has the plaintiff stopped working out or going to the gym because of his/her injuries? Has the plaintiff been able to do household chores? Or has plaintiff had to pay others to do the chores plaintiff normally does?
  • Any pre-existing conditions or injuries – In many car accident cases involving injuries to the neck or back, the defense may argue that the neck or back injuries pre-existed the accident to some degree. So, in a deposition, the defense will ask the plaintiff if he or she has ever had the symptoms they are currently complaining about. The defense will also want to know the doctors or other healthcare providers the plaintiff has seen before the accident.
  • Any prior accidents or other personal injury or insurance claims – Insurance companies usually do a background check with the Insurance Services Office (“ISO”) database. This ISO database shows the insurance company whether a plaintiff has previously filed insurance claims. This includes any property or personal injury claim from a car accident, and could include homeowner’s insurance claims. In covering this topic, the defense attorney has two goals: (1) learn more about those prior claims and whether plaintiff’s injuries in those claims are similar to the present claim and (2) hopefully catch the plaintiff lying or failing to mention one of those prior claims.

If you or a loved one have been injured in a car accident or other type of accident, call the experienced personal injury attorneys at D.R. Patti & Associates. Our award-winning attorneys have handled many different types of car accident cases in Las Vegas and have obtained millions of dollars on behalf of our clients. While working on your case, we will keep you informed and be at your side throughout the process.

Discovery in Personal Injury Lawsuits

Posted by drpadmin on

Las Vegas injury trial attorneys

We’ve seen them. Trial in movies or tv shows where one of the parties produces a surprise witness or evidence. Such surprises make for an exciting movie or tv show but is not realistic. In real life trials, surprises are disfavored. Any new evidence not previously disclosed to other parties will likely be excluded. In litigation, discovery is the process during which the parties disclose the evidence they intend to use at trial.

While movies and tv shows usually focus on trials, the bulk of personal injury lawsuits is spent in discovery. In Nevada, discovery begins soon after a defendant files an answer. It begins with the mandatory exchange of witnesses and documents. Rule 16.1(a) of the Nevada Rules of Civil Procedure list the items that must be disclosed at this early stage.

Rule 16.1. Mandatory Pretrial Discovery Requirements

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General.  Except as exempted by Rule 16.1(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have information discoverable under Rule 26(b), including for impeachment or rebuttal, identifying the subjects of the information;

(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, including for impeachment or rebuttal, and, unless privileged or protected from disclosure, any record, report, or witness statement, in any form, concerning the incident that gives rise to the lawsuit;

(iii) when personal injury is in issue, the identity of each relevant medical provider so that the opposing party may prepare an appropriate medical authorization for signature to obtain medical records from each provider;

(iv) a computation of each category of damages claimed by the disclosing party — who must make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(v) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment and any disclaimer or limitation of coverage or reservation of rights under any such insurance agreement.

The list of items that must be disclosed include:

  • The names and contact information of people who likely have relevant information
  • A copy of documents relevant to the case
  • In Las Vegas personal injury cases, the names of health care providers that treated the plaintiff for injuries or pre-existing conditions relevant to the case
  • If there is an insurance policy that would cover all or part of the damages claimed, then the insurance policy. In a car accident, this means the defendant must disclose their car insurance policy.
  • An itemization of the damages claimed by the party. In personal injury cases, this means the medical bills a plaintiff has incurred or will incur in the future, lost wages or income, and any other out-of-pocket expenses

A party in a lawsuit has a continuing duty to disclose the above items as the litigation continues. A party who fails to disclose these items can face a motion to compel from the other side. In a motion to compel, the other party asks the court to force the non-responding party to disclose the required items or information. If the non-responding party fails to do so, the court can sanction the non-responding party. Sanctions could be a monetary fine; the non-responding party could be required to pay the other party’s attorney’s fees and costs. The court could preclude the non-responding party from relying on any undisclosed information, witness, or evidence. The court could also dismiss part of all of the non-responding party’s claims or defenses. The worst sanction for a plaintiff would be dismissal of the entire case.

After the initial disclosure of witnesses and documents, the parties have several tools under the Nevada Rules of Civil Procedure to obtain relevant information and items. These include

  • Interrogatories (NRCP Rule 33)
  • Requests for Production of Documents (NRCP Rule 34)
  • Requests for Admissions (NRCP Rule 36)
  • Depositions (NRCP Rule 30)
  • Site Inspections (NRCP Rule 34)
  • Independent Medical Examination (NRCP Rule 35)
  • Subpoenas (NRCP Rule 45)

Of the above, only depositions and subpoenas can be used to obtain documents and information from people who are not parties to the lawsuit.

The above mechanisms are the only ones mentioned in the Nevada Rules of Civil Procedure. However, there are informal means to conduct discovery. Parties can still hire investigators or do their own online research. In personal injury lawsuits, insurance companies may hire an investigator to conduct a surveillance of an accident victim. With social media, insurance companies sometimes do not need to do surveillance.

Regardless of the means a party to a lawsuit obtains relevant documents and other evidence, the party must generally disclose those materials before trial or risk not being able to use them at trial.

If you or a loved one are facing a lawsuit for injuries you sustained as a result of a car accident in Las Vegas, the experienced trial attorneys at D.R. Patti & Associates can assist you. With a combined total of 50+ years of experience, the Las Vegas car accident attorneys of D.R. Patti & Associates can advise and guide you through the process and obtain the best results possible.

Timeline of a Las Vegas Personal Injury Lawsuit

Posted by drpadmin on

Timeline of a Las Vegas Personal Injury Lawsuit

A lawsuit begins with the filing of a complaint. Generally, if the accident occurred in Las Vegas, the complaint would be filed in state court. In some cases where damages exceed $75,000.00 and the parties reside in different states from each other, those cases can be filed with the federal court. This timeline will focus on cases filed in state court. The person on whose behalf the lawsuit is filed is called the plaintiff. The person being sued is called the defendant.

The amount of damages an injured person is seeking determines which state court the lawsuit is filed in. If the damages do not exceed $15,000.00, the case is filed with the Las Vegas Justice Court. If the damages exceed $15,000.00, the case is filed with the Eighth Judicial District Court.

Las Vegas Personal Injury Cases In The Eighth Judicial District Court

In personal injury cases (except Medical Malpractice), a lawsuit must be filed no later than the second anniversary of the accident. This is called the statute of limitations. This means that if the car accident or slip and fall that caused your injuries occurred on July 1, 2020, the lawsuit must be filed by July 1, 2022. If the lawsuit is not filed by the second anniversary, the lawsuit will be dismissed. Nevada’s statute of limitations applicable in personal injury cases can be found in NRS § 11.190.
Once the complaint is filed, the plaintiff has 120 days to serve the defendant with the complaint and a summons. This step is called service of process. A defendant must be served before the court can have jurisdiction over the defendant. The laws governing service of process can be found in Rules 4 and 4.2 of the Nevada Rules of Civil Procedure (“NRCP”). Failure to serve the defendant without good cause before the 120 expires can result in dismissal of the lawsuit. If additional time is needed to serve the defendant, a plaintiff should seek an extension with the court before the 120 days expires.
The best and primary way to serve a defendant is through personal service, which means that a defendant is personally handed the complaint and summons. Any person over the age of 18 years old and not a party to the lawsuit can serve the defendant. See NRCP Rule 4(c)(3). If the defendant is a legal entity, such as a corporation or a limited liability company, the company’s registered agent for service of process can be served. If the defendant is a Nevada corporation or limited liability company, you can find out who the registered agent is through the Nevada Secretary of State’s website.

If the defendant cannot be found, Rules 4 and 4.4 of the NRCP provides for alternatives to personal service. To be able to utilize those alternatives, the plaintiff or her attorneys must show that they conducted due diligence in locating defendant and attempting to serve them. Alternatives to personal service including publishing the complaint and summons.

Once the defendant is served, they have 20 days to file an answer. Once the defendant files an answer, the plaintiff can request exemption from the mandatory Court Annexed Arbitration Program or proceed through the program.

The Mandatory Court Annexed Arbitration Program

In the Eighth Judicial District Court, all cases are automatically enrolled in the mandatory Court Annexed Arbitration Program. Thus, unless exempted, all cases must first be arbitrated.  The purpose of this Arbitration Program “is to provide a simplified procedure for obtaining a prompt and equitable resolution of cervical civil matters.” Absent good cause, arbitration hearings for cases in the program must be held within 6 months after appointment of an arbitrator. The laws governing the Arbitration Program can be found in the Rules Governing Alternative Dispute Resolution.

A case is exempted from the program if the case involves a claim in excess of $50,000.00. There are other reasons a case can be exempted from the program, such as public policy. A request for exemption must be submitted to the Arbitration Commissioner within 20 days after the defendant files an answer.

If a Las Vegas personal injury case is worth less than $50,000.00, it will usually be first arbitrated. In an arbitration, the case is decided by a qualified neutral third-party. Sometime after an answer is filed, the parties in such a case will receive a list of five potential arbitrators, usually local attorneys. Each party can de-select two of the potential arbitrators, and the Arbitration Commissioner will select the arbitrator from the remaining names.

The decision of the arbitrator is non-binding, unless the parties agree otherwise. This means that once the arbitrator issues her decision, either party to the lawsuit can elect to proceed to a trial by filing a “Request for Trial De Novo” within 30 days after the arbitrator issues her decision. If such a Request is filed, the lawsuit will proceed through the Short Trial program unless a party demands removal from the program within 10 days after the Request. If a lawsuit is removed from the Short Trial program, the lawsuit proceeds on the regular course of litigation.

As with the Court Annexed Arbitration Program, the Short Trial program is intended to provide a faster resolution of a lawsuit. Unlike a regular trial, a trial in the Short Trial program must occur within 120 days after the presiding judge is appointed. In a lawsuit that is not in the Short Trial program, it can take a year or more for a case goes to trial. There are other difference. Unlike a regular trial, a case in the Short Trial program only has 1 day to try the case in front of a jury of four people. Also unlike a regular trial, a pro tempore judge, rather than a district court judge, can preside over a Short Trial. The Short Trial rules can be found in the Nevada Short Trial Rules.

Scheduling Conference & Discovery

After a Las Vegas personal injury lawsuit is exempted from arbitration or an arbitrator is appointed, a scheduling conference will be held with the parties or their attorneys. If the case is in the Arbitration Program, the scheduling conference will be set by the arbitrator. If the case is not in the Arbitration Program, the plaintiff will schedule the conference. In the scheduling conference, the parties discuss how long they need to conduct “discovery” and set deadlines.
Discovery is essentially the process during which each side conducts their investigation and discloses the evidence they intend on using at trial. The Nevada Rules of Civil Procedure provide for the following ways to conduct discovery:

  • Interrogatories (NRCP Rule 33)
  • Requests for Production of Documents (NRCP Rule 34)
  • Requests for Admissions (NRCP Rule 36)
  • Depositions (NRCP Rule 30)
  • Site Inspections (NRCP Rule 34)
  • Independent Medical Examination (NRCP Rule 35)
  • Subpoenas (NRCP Rule 45)

In cases outside the Arbitration Program or Short Trial Program, the discovery period could last longer than 6 months after the scheduling conference. Oftentimes, it could be as long as a year. The more complex a case is, the longer the discovery period could take. If the parties cannot agree on how long the discovery period should be, the district court judge assigned to the case or the Discovery Commissioner will set the discovery period.
Along with the discovery period, the other deadlines the parties can either agree to or the court can set include deadlines for filing pre-trial motions, deadlines for disclosing experts, and the deadline for the case to be ready for trial.

Dispositive Motions, Pre-Trial Motions & Trial

In cases outside the Court Annexed Arbitration Program or Short Trial Program, the next deadline the parties usually face after the discovery period is the deadline to file dispositive motions. This deadline is usually set 30 days after the end of the discovery period. Dispositive motions are papers or briefs submitted by a party to the court, in which the party asks the court for a case-ending decision. The typical dispositive motion is called Motion for Summary Judgment.

Another deadline the parties face after the discovery period is the deadline to file pre-trial motions. Pre-trial motions usually deal with evidentiary issues. That is, the parties argue what evidence can be shown to a jury or what must be excluded.

The final step is the trial. In cases outside the Court Annexed Arbitration Program or Short Trial Program, trial can last days and, sometimes, weeks. By the time a trial starts in a case outside the Court Annexed Arbitration Program or Short Trial Program, over a year could have lapsed since the lawsuit was started.

If you or a loved one are facing a lawsuit for injuries you sustained as a result of a car accident in Las Vegas, the experienced personal injury attorneys at D.R. Patti & Associates can assist you. With a combined total of 50+ years of experience, we can advise and guide you through the process and obtain the best results possible.