Why not have Trial By Surprise?

The headline reads “Mystery witnesses and secret documents come to light at Trial to the surprise and shock of everyone in the Courtroom!”

Not in a Pennsylvania Civil Trial, like a Personal Injury Trial.

Why not?

Because in Pennsylvania Civil Litigation, the parties go through a lengthy and exhaustive Discovery Process in which all relevant documents are exchanged and witnesses are identified and deposed under oath so that no one will be surprised at Trial.

The purpose of the Discovery Process is twofold.

First, fundamental fairness dictates that the use of mystery witnesses and concealed documents at Trial is not likely to result in either party getting justice.  Instead of having a Trial by Surprise, each side should have equal access to the witnesses and evidence relevant to the case so that their lawyers can effectively advocate for them and the parties can have a fair Trial.

Second, full disclosure often leads to settlement negotiations and the resolution of the dispute.  Informed attorneys can assess the strengths and weaknesses of the the case and predict what a Judge or Jury will likely do at Trial.  This can result in a settlement which avoids the expense, risk and time delay involved in trying a case.

What’s Involved in the Discovery Process in a Pennsylvania Personal Injury Case?

Interrogatories and Requests for Production

In a Pennsylvania Personal Injury Case, the Discovery Process can involve many things.

The first step is usually written discovery consisting of Interrogatories and Requests for Production of Documents.  Each side asks the other written questions (Interrogatories) which must be answered under oath.  Requests for Production can also be served requesting that the other side produce relevant documents, photographs, records, etc.

Record Subpoenas

The parties can also subpoena relevant documents from non-parties.  For example, in a Personal Injury Case, it’s common for Defense Lawyers to subpoena all of a Plaintiff’s recent medical records to try to establish that the injuries existed before the accident or were caused by something other than the accident.


The lawyers can also schedule Depositions of the parties to the lawsuit and subpoena non-parties.  A Deposition is an oral interview under oath in front of a court reporter in which the witness is asked questions about things that are relevant to the lawsuit.  In addition to being transcribed by a court reporter, the Deposition may be videotaped.

In a personal injury case, the injured person (Plaintiff) is always deposed and the Defendant is usually deposed too.  Other witnesses to the accident or people who are identified as possible witnesses for trial about the accident or Plaintiff’s injuries are often deposed.

Accident Scene Visit

A visit to the Accident Scene to inspect and photograph it can also be part of the Discovery Process.  If the accident occurred at a store or someone’s home, the Plaintiff can ask for access in Discovery.

Defense Medical Exam

The Defense Lawyer often hires a doctor to examine the Plaintiff and write a report about his or her injuries so that the doctor can testify as a witness for the defense at the Trial.  This involves the doctor reviewing relevant medical records and conducting a physical exam of the Plaintiff.  The doctor’s report must be produced to both the Defense and Plaintiff lawyers.

Expert Disclosures

Usually the last part of Discovery is disclosure of Expert Reports.  If either side wishes to have an Expert testify at Trial, then they must produce a report by each expert outlining his/her qualifications and detailing his/her expert opinions.  Unlike other states which permit Expert Depositions, Pennsylvania does not.  Instead, the production of the written report is the only disclosure required of Expert Witnesses.

Through this Discovery Process, each side learns about the other side’s case, which ultimately results in a settlement by informed parties or a fair trial after full disclosure.

Tim Rayne is a Pennsylvania Personal Injury Lawyer with MacElree Harvey.  For over 25 years, Tim has been helping injured accident victims understand their legal rights and receive fair compensation from insurance companies. Tim has law offices in Kennett Square and West Chester Pennsylvania but also meets with clients at their homes or virtually via Zoom or FaceTime.  Contact Tim Rayne at 6108400124 or trayne@macelree.com for a Free Consultation regarding your injury. 

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