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.

The length of the discovery phase varies from case to case based upon many factors, some in the lawyer’s control, but most not. For the majority of cases the discovery phase measured from after the answer is filed or served takes about six months to two years. In complex product liability or medical malpractice cases, the period can be longer. Moreover, if the judge makes a ruling during the discovery phase that is appealed by one party to the appellate court, referred to in New York as the Appellate Division of the Supreme Court, then this process can take considerably longer.

Once the case is assigned to a specific judge the decision of when it will be tried is based upon a number of factors including: the type of case, judge’s backlog of other cases to be tried, other previously scheduled trials for the lawyers, availability of witnesses and others. Some cases are given a date certain for trial while others are put on a calendar and called for trial when they reach the top of that list. Typically more complex trials requiring medical and professional witness testimony such as medical malpractice and toxic tort cases will receive dates certain because of the difficulty arranging testimony from such witnesses on short notice.

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.

Simultaneous with the discovery demands served by defense counsel on plaintiff’s counsel, plaintiff’s counsel will also serve discovery demands on the defense counsel asking for specific information about any defenses raised by the defendant in the answer, the names and addresses of witnesses, the amount of insurance available to cover the claim, the production of relevant documents and other information. In product liability cases such as defective drugs or products, extensive requests are made for the design documents relating to the product including all testing reports, blueprints and internal memoranda of the company about the product. In these types of cases this phase can be lengthy as there is typically a great deal of documentation involved in the design and marketing of a product alleged by the plaintiff to be defective and to cause injury.

After the written discovery requests by each side are exchanged and responded to, the next phase is the scheduling of depositions also referred to in New York as examinations before trial (EBTs). The deposition occurs typically in one of the lawyers’ offices. The party is asked questions to answer under oath while a stenographer records what is said. A transcript of this testimony is produced which can then be used later to contradict any contrary testimony given at trial. Your attorney is present for your deposition and can object to questions that are asked if they are improper, but otherwise cannot coach you or advise you how to answer specific questions, except in the limited circumstance where the answer involves disclosure of legally privileged information (e.g. discussions between you and your attorney). The deposition of the defendant or in the case of a corporation, representatives of a defendant, are also scheduled and completed during this stage. In some cases witnesses who are not available to attend the trial will also be deposed and their testimony preserved, frequently on videotape. Many times treating doctors are given the option of giving testimony this way instead of having to appear at the trial.

Once the depositions are completed, frequently an injured plaintiff will have to submit to an examination by a physician of the defendant’s choosing, referred to as an independent medical examination (IME). This is a bit of a misnomer, as the physician chosen is frequently an advocate for the defendant’s position and far from independent. However, the law requires that an injured plaintiff submit to the examination nonetheless and plaintiffs must be careful to understand the purpose of the exam and not consider the physician as someone who is out to help them.