January 19th, 2011
Posted by Stephen G. Schwarz, Managing Partner, Faraci Lange
Getting the case on the trial calendar
When all discovery is completed the plaintiff in New York files what is called the note of issue, which states that the case is ready for trial and requests that a trial be scheduled. If a specific judge has not been previously assigned to the case then one will be assigned with the filing of the note of issue and that judge will then be responsible for scheduling the case for trial. A judge may already be assigned at this point if some court intervention was necessary due, for instance, to a failure of one party to properly respond to demands for discovery made by the other or if a motion to dismiss the case was made. In medical malpractice case judges are always assigned early on as part of a special package of procedures that apply only to this class of cases. More…
January 12th, 2011
Posted by Stephen G. Schwarz, Managing Partner, Faraci Lange
The pre-trial discovery phase
The discovery phase, also referred to in New York as the disclosure phase, as the names suggest, is the part of the case where the parties are required to exchange certain information relevant to the case to allow the other side to properly prepare for trial. There are a number of discovery devices that are used for this purpose. With the answer to the complaint defendants will typically serve demands for further written information. These demands can take the form of something called a bill of particulars, or in other cases, a list of questions called written interrogatories. These devices both require written answers sworn to by the plaintiff to certain questions posed about the allegations of how the injury occurred and what the extent of the injury is and is expected to be. Defendants also commonly serve demands for the production of documents, including tax returns, accident reports and other documents the plaintiff might have that are relevant to the claim. In cases alleging that a plaintiff has suffered an injury, such as an auto accident case, medical malpractice case or product liability case, the plaintiff must also provide the defendant with medical records authorizations to allow him to obtain from treating doctors and hospitals all relevant medical records to the case. In the discovery phase the courts interpret what is relevant very broadly. This means that when you bring a personal injury case you must understand that your medical history will likely be opened up for inspection by the defendant, except under limited circumstances where the medical history is clearly irrelevant to the claim. More…
