What is a Discovery Examination?
A discovery examination is part of the litigation process and occurs after a lawsuit has been filed with the Court and the parties have exchanged all of the relevant documentary and electronic information in their possession.
Why are you being asked to attend a Discovery Examination?
A discovery examination provides an opportunity for each party to question the other party (or parties) about their claims or defences. The primary purpose is to gain an understanding of the other parties’ case. In a personal injury case, a discovery examination helps the insurance company better understand the Plaintiff’s case. As the Plaintiff, you will be asked about the incident that led you to make your claim, the injuries you suffered as a result of the incident and the effect the injuries have had on your life since the incident.
A discovery examination serves other purposes as well. It allows the parties to assess each other witnesses. If your case goes to trial you will very likely be required to testify on your own behalf. Your discovery examination allows the other parties to determine whether you will be effective in putting forward your claim. Is your evidence credible? Are you able to testify clearly and consistently?
The answers you give at a discovery examination may be used if your case ever goes to trial. Specifically, if you answer a question differently at trial than you did during your discovery examination, you may be challenged on the inconsistency. Inconsistent testimony may have a significant negative impact on your claim. For this reason, and because you have sworn or affirmed to do so, it is very important to be truthful in all of your responses.
A discovery examination also facilitates the resolution of claims outside of Court. Often, a Defendant will base its settlement position based on the information it ‘discovers’ during a discovery examination. This is especially the case for insurance companies.
What to expect at your Discovery Examination?
A discovery examination does not occur in a courtroom in front of a judge. In most cases it will take place at the offices of your lawyer, or the lawyer for one of the other parties. You will be in a room with the other parties and their lawyers. Only the lawyers are allowed to ask you questions.
There will also be a Court Reporter who will record all of the questions and answers. She will ask you to swear an oath on the Bible or affirm that your answers will be truthful. This oath of affirmation is the same as you would be asked to make if you were giving testimony in Court.
Once the oath or affirmation have been made, the lawyer representing the other party or parties will ask you a series of questions. Generally, they will begin with basic background questions about you. Then they will move on to questions about the incident, your injuries and how the injuries have impacted your life. Discovery examinations vary in length and we recommend that clients prepare to be questioned for an entire day.
Your lawyer will be beside you for the entire process. That is to ensure that the questions being asked are proper. If the opposing lawyer asks any questions that are improper, your lawyer will object. As the witness, this is your cue to stop talking. After a discussion among the lawyers, you may be asked to answer the question, or not.
What is an Undertaking?
An undertaking is basically a formal promise made by a lawyer. During the course of a discovery examination, the lawyer asking questions may ask the lawyer for the party being examined to undertake to provide some form of information that is not available at the time of the examination. This could include a document that was produced in the Affidavit Disclosing Documents or a key piece of information that the witness can’t recall while being discovered, but could confirm afterwards, etc. If the lawyer asking you questions asks for an undertaking, it is your cue to stop talking again. Your lawyer will either agree to the undertaking, refuse it, or take it under advisement.
If you are ever asked to give evidence at a discovery examination, here are a few rules to follow that will ensure that everything goes smoothly:
- TELL THE TRUTH
- speak loudly and clearly – you are being recorded
- listen to the question you are being asked
- answer the question you are being asked
- answer ONLY the question you are being asked – provide the information to answer the question fully and completely, but no more
- “I don’t remember” is an acceptable answer – no one expects you to remember everything and, if you don’t remember an answer, DO NOT GUESS
- ask for the question to be rephrased or repeated if you don’t understand it
- do not argue with the lawyer asking you questions
- stop speaking when your lawyer speaks