Q: I am the victim of a reckless driver. He caused the accident and admits fault. The injury to my back was so bad, I had surgery. Since then, I hired a lawyer who has filed a lawsuit. The guy we are suing has asked for 10 years of my medical records, and asked whether I have ever had treatment with a psychologist. Can they really get all that?
C.M., Canyon Lake
A: In a civil case, one of the basic actions each side can take is called discovery. It means what the word signifies — discovering information relevant to the claims.
Discovery also is permitted to seek information and documents “reasonably calculated to lead to admissible evidence.” In effect, the parties can go on a kind of “fishing expedition.” If the discovery is too far afield, too intrusive, overly broad or overly burdensome, objections can be made and/or a protective order can be sought. Not everything is going to be discoverable — but discovery is liberally construed.
When you file a personal injury claim, seeking damages for physical and psychological harm, it opens the door to the other side to request information that may show you had a prior condition, or a history of issues physical and/or emotional, and that what you are complaining about actually arose before your claimed injuries.
Hopefully, the scope of discovery is not something about which you had no prior knowledge. Your lawyer can and should talk it out with you. In addition, I do not want to give the impression anything goes. I simply can indicate that one of the challenges for you is that the other side may try to argue your injury is not that bad, or that you already were injured, and that whatever mental harm you are complaining about now is nothing new because you had problems before. None of that means you may not have a significant monetary recovery, but it is part of what you likely have to deal with going forward with the lawsuit.
Q: In my accident case, the defense has hired a person who is going to reconstruct the accident. My lawyer tells me this “expert” will argue the accident could not have led to the kind of injury that I have. Isn’t that just a hired gun who will say whatever because that’s what he is paid to do?
S.J., Santa Ana
A: You are asking whether an expert witness is a “hired gun.” In my experience, the other side’s expert often expresses opinions that seem off-the-wall, if not quite suspect. I do not want to be too cynical here, because each expert witness is expected to testify truthfully.
Bottom line, the trier of fact will have an opportunity to determine if the expert has presented an opinion that is credible and has at least a ring of truth, or is a bunch of baloney. The trier of fact invariably will hear how much the expert charges for his or her time, how much he or she has been paid or is owed, how many times he or she has testified for that lawyer or that firm, and how often he or she testifies for the defense. While the expert may express an opinion, have charts and graphs and an impressive resume, it does not mean the opinion is going to carry the day.
An expert opinion is only worth its credibility. Your lawyer very likely will counter with his or her own accident reconstructionist and/or with a medical expert who ties your injury directly to the accident. So I would say “grin and bear it.” Litigating is not a whole lot of fun, and requires patience, strength and faith the facts and law will prevail.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.