If you're filing a personal injury lawsuit, the length of time it will take to complete the discovery process depends in large part on the court where the lawsuit is filed, and the defendant's willingness to cooperate in the process. Read on for the details.
For the basics on the discovery process, which includes written questions (interrogatories) on-the-record testimony (depositions) and other processes, check out How Discovery Works in Your Lawsuit.
The Court Calendar and the "Rocket Docket"
As a general rule, the discovery process takes longer in state courts than in federal courts, but since the vast majority of personal injury complaints are filed in state court, we need to explore how state courts differ when it comes to calendars and scheduling.
Some courts are known for letting lawsuits drag out, while others have a reputation for what’s called a "rocket docket." Let’s compare a court where discovery can take quite a while with a rocket docket court.
In a rocket docket court, a lawsuit might be scheduled for trial 8 to 9 months after the lawsuit is filed. If the entire pretrial phrase of the trial lasts only those 8 to 9 months, the discovery phase of the litigation might be over after the first 4 to 5 months. That’s not a lot of time, so the lawyers are generally in a rush to keep up with the court's schedule.
Remember that, as part of discovery in a personal injury case, each side's lawyer will usually:
- send out interrogatories (written questions)
- send out document production requests, and
- take depositions of parties and witnesses.
That's a lot to do in a short amount of time, especially since the lawyers likely have other cases and can’t be in two places at once.
But in a rocket docket court, the judge expects the lawyers to do whatever is necessary to meet deadlines. So, one advantage of a rocket docket court (at least for the plaintiff) is that it is very difficult for a defense attorney to prolong the discovery process with stall tactics and other delays. A defense attorney can almost never go to the judge and complain that about needing more time in order to properly defend the case. At most, the judge might extend the discovery deadline by a couple of weeks.
When the Defense Rests (on Its Laurels)
On the other hand, there are some state courts where a personal injury lawsuit can drag on for a long time, sometimes two years or longer. In some courts, there is no specific discovery deadline, and so the process will just linger on until the plaintiff’s lawyer can convince the judge that the parties are (or should be) ready for trial.
In that type of court, it's much easier for the defense attorney to drag things out. As you might assume, insurance companies generally like the discovery process to take more time. The longer the discovery process goes on, the greater the chances that the defense attorney might dig up some damaging information on the plaintiff. Or, the thinking goes, if a case drags on for a long time, the plaintiff might get desperate for money and agree to settle the case for much less than it's worth just to get some money now.
So, if your personal injury lawsuit is being heard in a court that does not move cases along very quickly, the defense attorney may try to take advantage of that, and engage in stall tactics when it comes to the discovery process.
Is there anything you can do to avoid a long delay in the discovery process? Your best strategy is probably to respond to the defendant’s discovery as quickly as you can, and don’t give the defense attorney any ammunition to ask the court for an extension of the process. Don’t let the defense attorney claim that you are dragging things out. If you and your lawyer have to go before the judge and ask that the case be moved along, you'll be able to point to your own record of complying with the defendant's requests.
If you're working with a personal injury lawyer, he or she will likely be very familiar with calendaring and scheduling practices at the local courts.