Written By: Dale Orlando and Jamie Davison, Summer Student
Imagine you are driving on the highway when you are rear-ended by another vehicle and suffer an injury. You contact our office for a free consultation and one of our team members with extensive expertise in car accident claims takes on your case. As part of the pre-trial process, you will likely participate in an examination for discovery where parties to the lawsuit get to question you under oath, outside of court. This may seem quite intimidating, but the McLeish Orlando’s team of personal injury lawyers is ready and willing to help you through each step of this process. Below you find helpful information explaining the basics of examinations for discovery, what you can expect will happen during your examination, and how to best prepare.
The who, what, where, when, why’s of examinations for discovery
The lawyers for each of the parties are entitled to examine the opposing parties. While a judge is not present, a court reporter will be there to transcribe the examination. These transcripts can be requested following the discovery.
Examination for discovery (also called a discovery hearing) is a procedure established by the rules of the court in Ontario called the Rules of Civil Procedure. For your discovery, as the Plaintiff, you will be asked a series of questions by the lawyer of the opposing party with the intent to discover your version of the car accident.
Currently, examinations for discovery take place online. However, prior to the pandemic, examinations would happen in a boardroom in the office of a court reporter.
Examinations occur after the following 2 steps have been taken:
- Pleadings are exchanged: the Statement of Claim (what you claim has happened) and the Statement of Defence (how the defendant is responding) are provided to the parties.
- Affidavits of documents are exchanged: lists of all the documents within the power, possession, or control of either party relevant to the lawsuit.
The purpose of examination for discovery is to:
- Understand and assess everybody’s case.
- Obtain admissions from the party being examined that can be used afterwards at trial or in motions.
- Determine if there are any areas of agreement between the parties, the hope being to promote a settlement of differences and prevent expensive trial time.
How to prepare for an Examination for Discovery
The types of questions to expect:
Parties are permitted to ask you questions about the matters at issue in the case, including questions about how the accident happened, your pre-accident medical history, your injuries, and your post-accident activities and abilities. However, there are limited exceptions that exclude particular types of questions, such as:
- Irrelevant questions: “how many parking tickets have you had in the last ten years?” Your lawyer would likely refuse this question, preventing you from answering, because your previous parking infractions are irrelevant to your liability in the car accident.
- Questions requiring too much work: questions that require you or your lawyer to do a disproportionate amount of work to answer can be refused. For example, if you are asked to produce documentation of every Optometrist appointment you attended the decade leading up to the car accident, your lawyer can refuse this request.
Keep in mind: it is not your responsibility to remember these rules! It is the responsibility of your lawyer to refuse questions.
10 tips to prepare for your examination
While one of our experienced team members will help you prepare for your examination, below are 10 tips to review and remember, to prepare you for a successful discovery:
- Review the documents or notes that you have relating to your case. Do your best to get comfortable with these documents so if asked about them, you feel prepared to speak to their contents. However, this is not a test! If you are asked: “what was the weather forecast on the date of the car accident?”, and you do not remember at the time of your examination, you should say “I do not remember”.
- Discuss and clarify any confusion. Prior to your examination, clarify with your lawyer any of the documents in your affidavits or parts of your Statement of Claim that you do not understand.
- Listen carefully to the entire question before you answer. This will ensure that you only answer what is being asked rather than going beyond. Clarify if you are confused as to what is being asked of you.
- Always tell the truth. If you do not know or do not remember, that’s okay, tell the truth. It is perfectly appropriate to say, “I do not know”.
- Avoid using absolutes like “always” or “never”. While exaggerating occurs in casual conversation, your words are taken literally in examination. Avoid limiting yourself through absolute statements.
- Answer verbally. While using body language like nodding or shaking your head can feel natural, it is important to answer verbally to get your answer on the record.
- Stay calm. To best remember the preparation done by you and your lawyer, take your time and do your best to remain calm. Ask for a break if you need one.
- Be polite. It is the job of your lawyer to fight for you. Your only job is to answer the questions and to show that you will not be riled up by the defense. No arguing.
- Get comfortable with silences. While the lawyers are reviewing notes or preparing their next question, do not fill the silence with additional information. Stick to the question asked and then be patient while you wait for the next. Added information may lead to further avenues of questioning.
- Listen to your lawyer. Your lawyer may refuse to answer questions on your behalf. It is extremely important that you follow your lawyer’s instructions if they tell you not to answer a question.
How McLeish Orlando lawyers can help
Lawsuits are frequently settled after the examinations for discovery have concluded because examinations permit the parties involved to assess the strengths and weakness of everyone’s case. Even though the examination process can be extremely helpful in the pursuit of a settlement, it can seem very daunting! Let the experienced team at McLeish Orlando help you tackle this process and prepare you for a successful plaintiff examination. Contact us today for a free consultation.