What is “Discovery” in a Civil Case?

Our Circuit Courts[1] across the Commonwealth of Virginia adjudicate both criminal and civil cases.  However, the right of the parties to require disclosure of information from each other before trial is quite different in a civil case than a criminal one.  The scope of discovery in civil cases is quite broad.  In fact, there are specific rules, commonly called “the Rules of Discovery,” which apply to the disclosure of information in civil cases filed in our Circuit Courts.  These Rules state that “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.”[2]  This same rule also says, “It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”[3]

Parties may obtain discovery by one or more methods including depositions upon oral examination, written interrogatories, and requests for production of documents.  Separate rules apply to each of these various methods of discovery.

Typically lawyers take full advantage of the discovery rules when preparing cases in litigation for trial.  From the plaintiff’s perspective, much of the burden falls upon their lawyer to respond to discovery requests sent by the defense attorney retained by the insurance company.  However, our client’s cooperation is required to comply with some aspects of such discovery requests.

As a plaintiffs’ personal injury trial lawyer, I find that fully utilizing the discovery methods available to prepare a case serves two purposes.  First, a well prepared attorney will face few, if any, surprises at trial.  Just as importantly, thorough discovery tends to promote settlement.  In other words, many cases are settled for a higher amount after the discovery process is complete compared to the initial settlement offer that was made by the insurance company before the lawsuit was filed. This occurs because the more the defense attorney learns about my client’s case through discovery, the strengths of my case become apparent to the lawyer and his insurance company which leads to an increased offer of settlement before trial.

About the Author: Charles L. Allen is among the third generation of Allen family attorneys to have worked with the personal injury law firm Allen, Allen, Allen & Allen. Since joining the firm in 1983, Charles has had extensive experience handling various types of personal injury cases including car accidents, trucking accidents and motorcycle accidents.

[1] In Virginia, there are two levels of trials courts, the General District Court and the Circuit Court, and two levels of appeals courts, the Court of Appeals and the Virginia Supreme Court.   For more information, see the Virginia courts webpage at http://www.courts.state.va.us/, and a description of the various courts (in a pdf on that website) at http://www.courts.state.va.us/courts/cib.pdf.

[2] See Rule 4:1 of the Rules of Supreme Court of Virginia, at http://leg1.state.va.us/cgi-bin/legp504.exe?000+scr+vscr-4Z1.

[3] See Rule 4:1(b)(1), at the website given in footnote 2 above.