Litigation Process – Discovery Examinations Explained

What is a Discovery Examination?

Discovery examinations are a part of the litigation process. They happen after you have filed a lawsuit, the insurance company has filed a defence to your lawsuit and the parties have exchanged the relevant documents in their possessions.

What is the Point of a Discovery Examination?

The primary point of a discovery is to allow the parties to better understand their case as well as the other side’s case. In personal injury claims, it allows the insurance company to find out the full extent of your claim. You will be asked questions about the accident, you injuries and the impact the incident has had on your life. Think of it this way: it is the insurance company’s chance to “discover” the full extent of your claim.

Discovery examinations have other purposes as well. They are a chance for the insurance company to see how you present as a witness and to assess your credibility. Chances are you, if your matter proceeds to trial, you will be required to testify again in court. Your discovery evidence can be used to highlight any inconsistent statements, thus questioning your credibility. Therefore, it is important to be truthful during discovery and answer questions to the best of your ability.

If, on discovery, you admit something damaging to your claim, the opposing lawyer can read the admission into the record as evidence at trial. Therefore, you should be careful to understand the question before you answer.

What Happens During a Discovery?

Discovery examinations do not happen in court or before a judge. Instead, they often take place in a lawyer’s office. A court reporter is present and records the evidence. If the parties request it, the court reporter will transcribe the evidence after the examination is complete.

At the outset of the discovery, you will be required to take an oath or affirm to answer the questions truthfully. The difference between taking and oath and affirming has to do with your beliefs and whether you feel comfortable swearing on the bible or would rather affirm to tell the truth.

The opposing party’s lawyer will then ask you a series of questions. It usually begins with simple, background questions such as your name, date of birth, education level, employment history and current living circumstances. Questions will then be asked relating to the accident, your injuries and treatment, and the impact the accident has had on your life. Discovery examinations vary in length, depending on the complexity of the case and the nature of your injuries, however we advise to clients to plan for the entire day.

If at any point the opposing lawyer asks an improper or irrelevant answer, your lawyer will step in and likely to advise you not to answer the question. If your lawyer starts to talk, that is your signal to stop.

What is an Undertaking?

Sometimes the opposing party’s lawyer will ask for an undertaking. Essentially what this means is that they are asking you to undertake to provide them with a piece of information or a particular document or record. It is best to leave this up to your lawyer.

Tips for Your Discovery

  • Remember to listen to the question and make sure you understand what is being asked. If you don’t understand the question, ask the lawyer to rephrase or explain what they are asking.
  • Only answer the question that is being asked. If follow up is needed, the lawyer will ask additional questions.
  • When asked about your injuries, given full and complete answers.
  • Speak loudly and clearly. The evidence will be recorded and therefore, you must speak loudly and clearly enough for it to be picked up by the microphones.
  • If you don’t remember the answer to a question, it’s ok to say that you don’t remember. That is a perfectly acceptable answer.
  • If you don’t know the answer to a question, that is also a perfectly acceptable answer. Remember, there is a difference between not remembering the answer and not knowing the answer.
  • Never guess.
  • If at any time you need to take a break, just say so.
  • Tell the truth.

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