You know you won’t see a nickel until your case gets to trial, but no one seems to cooperate. The defense lawyers want to adjourn everything and the court seems more than willing to give them what they want. It’s enough to make you crazy.
What if there was a tried and true system for avoiding delays and adjournments and getting your case to trial in half the time? This is our policy for getting cases through discovery as quickly as possible.
Step #1: Pre-Litigation Checklist
Before you file the lawsuit, have your secretary go through a checklist of all of the documents you’ll need. These documents will include a complete set of medical, employment and tax records–make sure you request these records before you file the lawsuit.
By requesting all of the documents before filing the lawsuit, you’ll have them before you receive the defendants’ initial discovery demands and your initial set of discovery responses will be complete and thorough. You won’t have to serve a discovery response stating, “These documents will be provided at a later date.” The defendants cannot refuse to schedule depositions because you’ve given them everything in your initial discovery responses.
Step #2: Serve Medical Records and Authorizations upon Receipt of the Answer
Upon your receipt of the defendants’ answers, serve a complete set of medical records and release authorizations. Even if your discovery responses aren’t ready, serve the medical records and authorizations in order to give defense counsel time to process the authorizations.
This will avoid the most common defense tactic for delaying depositions, namely, “We haven’t had time to process the authorizations”. If you serve the authorizations upon defense counsel on the first day you receive their answer and provide them with a complete set of medical records, you’ve taken a big step to avoiding their #1 complaint.
Step #3: Object to Discovery Demands within 30 Days
Under New York law, you waive your right to object to discovery demands unless you object within 30 days (CPLR section 3122(a)).
If the defendants’ discovery demands request objectionable records, i.e., substance abuse counseling records, psychiatric records, social media profiles, you should send a letter objecting to the demands and stating the basis for your objections within 30 days. Simply send a letter stating your objections and serve the plaintiffs’ discovery responses later, if necessary.
Step #4: Resolve Discovery Issues Before the Preliminary Court Conference
Five days before the first preliminary court conference, send a letter via fax/email to defense counsel asking them to notify you if they claim that the plaintiff has not fully complied with discovery or if they claim there are additional medical, employment or income records that the plaintiff has not provided. In your letter to defense counsel, state that you wish to ensure that there are no outstanding discovery owed by the plaintiff before the preliminary court conference.
If the defense counsel responds to your letter, you can bring the outstanding discovery records/authorizations to the preliminary conference and resolve any complaints made by defense counsel. You will appear well prepared at the preliminary conference and more importantly, defense counsel cannot object that you haven’t fully responded to their discovery demands.
If the defense counsel does not respond to your letter, you can advise the Judge that you attempted to address the issue of outstanding discovery with defense counsel before the preliminary conference, but they did not cooperate. You are showing the Court that you’re prepared and defense counsel isn’t.
Step #5: Subpoena Non-Party Witnesses for Depositions ASAP
There’s no rule that the plaintiff or defendants have to be deposed before non-party witnesses. Once you receive the defendants’ answer, serve a subpoena for the depositions of non-party witnesses. Don’t bother scheduling a date for the deposition that is convenient for defense counsel—they’ll tell you they’re busy for the next year.
Get the non-party depositions completed before the depositions of the parties. Once the depositions of the plaintiff and defendants have been completed, there will be no other depositions and you’ll be ready to ask for a trial date.
Step #6: Resolve Disputes with Defense Counsel Amicably
There is nothing that will delay a lawsuit more than a discovery motion. When a discovery dispute flares up with defense counsel, schedule a phone call with them and strive to resolve the dispute. Do NOT write a hateful letter to the court making accusations against defense counsel.
Make small concessions with defense counsel and strive to resolve discovery disputes, so you don’t have to face motions and appeals that will delay your case indefinitely.
Step #7: Never Adjourn Anything
Adjournments are the biggest enemy of the plaintiffs’ lawyer. Once depositions are confirmed, never adjourn them for any reason (unless your adversary’s parent or spouse dies, then you might have to). This is the most important rule for getting your cases to trial.
When defense counsel tries to adjourn the deposition, simply respond that there are court-ordered deadlines set forth in the Court’s preliminary conference order and an adjournment would violate the Court’s Order. You should also explain to defense counsel that you do not have your client’s consent to adjourn the depositions.
If you don’t insist upon compliance with the preliminary conference Order, no one else will. Be firm with defense counsel: NO ADJOURNMENTS!
Step #8: Double and Triple Book Trial Dates
Once discovery is complete, ask the Court for the first available trial date regardless of your trial calendar. You must double and triple book trial dates.
Don’t worry about your schedule of depositions, vacations and trials—everything will work out. If you’re not available for a trial, you can ask another lawyer to take care of it. Even if you have 3 trials on the same date, almost always 2 of the 3 will settle and you’ll be just fine.
Step #9: Analyze Everything
At the end of discovery, analyze the time that it took to complete each phase of discovery. Find out where discovery got stuck and took too long and discuss with your team the ways to fix the problems for the next case.
Our Key Performance Indicators for discovery consist of 4 categories:
#1: Time between the Receipt of the Defendants’ Discovery Demands and the Service of the Plaintiff’s Bill of Particulars: 30 Days
#2: Time between the Plaintiff’s Deposition and the Completion of Depositions: 180 Days
#3: Time between the Receipt of the Defendants’ Answer and the Filing of the Note of Issue: 9 Months
#4: Time between the Filing of the Lawsuit and the First Day of Trial: 1 Year, 6 Months
Strive to complete your case in 1 year and 6 months.
The average lawsuit in upstate New York takes more than 3 years. In June and July, we settled 3 cases that each took 1 year and 6 months to complete. Mission accomplished! Hey, we’re far from perfect, but you’ll never get your cases to trial if you don’t have a system.
If you want a copy of our Pre-Litigation Checklist, send an email to our Alyssa Marcello, our Happiness Creator and Problem Solver, at firstname.lastname@example.org and she will be happy to email it to you.