How Can We Have A Successful Examination for Discovery?

Many plaintiffs in the GTA worry about their examination for discovery.  Examination for discovery is an important part of your case. It is the first time the opposing lawyer hears from you directly. The defence lawyer hired by the insurance company will develop an impression of the strength of your case based on the facts as you recite them.  The lawyer will also be assessing how good you are as a witness. Are you believable?  Are you likeable? A little practice and preparation will help you achieve success at the examination.

What is Examination for Discovery?

Good question! Examination for discovery is sworn testimony (questions and answers) given before a court reporter.  A court reporter is a person who is trained to create a transcript of evidence.  The examination is usually done at a court reporter’s office but sometimes is done virtually on Zoom or Go To Meeting. When examination for discovery is conducted in person, the room is usually like a conference room. Most of the time, all the lawyers involved in the case are there. After the examination, a transcript may be created. The transcript is a verbatim (word for word) version of what was said at the examination.

Normally, everyone who is named as a party in the lawsuit is examined for discovery.  However, although all parties are not usually all in the room at the same time.

Why Do We Have Examination for Discovery?

There are three main reasons why the defence lawyer wants to examine you.

1. First, as mentioned above, the lawyer and his or her client want to size you up as a witness. How will the jury like you? Do you seem credible and reliable?
2. Second, the lawyer wants to hear your version of what happened, from your mouth directly.
3. Third, the lawyer wants to lock into your story. Because you are giving sworn evidence under oath, if you change your answers at trial, you will be cross-examined against what you described at examination for discovery. This is called being “impeached”. It can hurt your credibility and hurt your case if your testimony is not consistent between discovery and trial.

How Can We Succeed at Examination for Discovery?

There are three key tricks to make the most of your discovery.

1. Most importantly: always tell the truth. Always! The lawyers and insurance adjusters you are dealing with are smart and very experienced. It is highly unlikely that you will trick them with exaggerating or not telling the truth. In a personal injury case, that means you have to admit to past injuries or medical incidents or pre-existing conditions.  You have to be careful not to overstate your injuries.  You also must be honest and forthcoming about your loss of income.
2. Stay on guard.  Be focussed! Sometimes, lawyers are aggressive. You will have no doubt that this is a formal legal proceeding. Other times, lawyers can be warm and friendly. Try not to be tricked into acting like this is a casual conversation just because a lawyer seems friendly. You are at discovery to answer the specific questions asked and nothing more. When we have breaks, you should avoid talking about anything personal in front of the opposing counsel. There are no exceptions, no matter how nice the lawyer seems. Everything said at discovery is “on the record”.
3. Listen to the questions. Be attentive.  Remember not to answer a question that you don’t understand. Do not start answering the question partway through. Don’t answer more information than the question asks. If you listen to the question, these rules are simple to follow.

What If We Can’t Answer A Question?

If you are stumped by a question, do not worry.  You answer: “I don’t know”. It is totally acceptable to tell the opposing lawyer that you don’t know the answer to the question. This process is not supposed to test your memory It is also very important not guess to at any answer. Sometimes it is acceptable to approximate. For example, this is acceptable if you are estimating a car’s distance from you. Just be sure to clarify that it is an estimate if you are not totally certain.

Is Your Lawyer Present While You Are Being Examined?

You will always have your own lawyer beside you during examination for discovery. Your lawyer works to make sure that you are treated properly during the process. For example, your lawyer will object to improper questions.  Keep in mind, however, that in personal injury cases these objections are rare. If your lawyer does not object, you should answer the question, even if you don’t like it or if it makes you uncomfortable.

In a personal injury case, there may be subject matters you will be asked about that can be personal or even embarrassing. Sometimes even your sex life can be a reasonable topic in many cases.  Rest assured that lawyers have heard it all!  Don’t be embarrassed and just do your best to answer the questions.  Your own lawyer will make all legitimate objections.

Although your lawyer is with you at examination for discovery, you are not allowed to have a secret or private conversation with him or her during your examination for discovery. It is simply not permitted.  Try to ask all your questions and to raise all of your concerns before you start, in private.

During the examination for discovery another step your lawyer is taking is planning what else needs to be done to build the case. Often the discovery will reveal aspects of your case that development. Your lawyer will be building a list of these areas and planning the next steps.