Examinations for Discovery allow the parties’ respective lawyers to question the opposing party and discover the opposing side’s case.
Apart from trial, the Examination for Discovery is the most important part of a Plaintiff’s lawsuit.
The purpose of this article is to provide a general idea of the procedure of a discovery examination, the objectives or purposes of a discovery examination, the types of questions to expect, and some tips on how to prepare.
Who is Present at a Discovery Examination?
Prior to the discovery examination, a Court Reporter will have the Plaintiff provide a solemn affirmation or swear on the bible of their choosing that the evidence they are about to give will be truthful. In other words, the Plaintiff will give an oath to tell the truth and will remain under Oath throughout the discovery examination.
Typically, the opposing party will not be present at your discovery examination, and you will not be present at the opposing party’s examination. However, the opposing party’s lawyer and your lawyer will be present.
The Plaintiff’s lawyer will examine and question the Defendant, who will be accompanied by his/her own lawyer, and the Defendant’s lawyer will examine the Plaintiff, who will be accompanied by his/her own lawyer. Typically, the defendant will be examined first although technically the party who first served the Notice of Examination will have the right to first question the other side.
Finally, there will be a Court Reporter present who will record the questions and answers and will create a certified transcript containing these questions and answers. The opposing party’s lawyer can read-in as evidence portions of this transcript at trial and can use the transcript to contradict or impeach the Plaintiff’s evidence at trial if it differs from his/her discovery evidence.
When is the Discovery Examination?
A discovery examination will occur after the pleadings (Statement of Claim and Statement of Defence) have been filed and served, and the parties have exchanged most relevant documents. Relevant documents will include the Plaintiff’s medical records (typically from 3-5 years pre-dating the loss to the present), income tax returns and employment records if there is an income loss claim being advanced, records of out of pocket expenses, motor vehicle accident reports or any other documents relating to liability, and records of any collateral benefits received by or available to the Plaintiff (for example, accident benefits, long term disability, CPP benefits).
Typically, expert reports will not be obtained prior to discovery examinations as discovery evidence is usually provided to experts to help them form their opinions. The one exception is medical malpractice claims where Plaintiff’s counsel will have, at least, verbal opinions relating to liability from relevant specialists to ensure the Plaintiff has a valid case and to have an idea of what questions must be asked.
Ideally, the exchange of documents will have occurred within 2 years of the date of the incident and discovery examinations will occur around the 2-year mark. However, each case is different, and some examinations may occur later. This is particularly true where the Plaintiff has not retained counsel in a timely fashion or in the case of complicated lawsuits involving many parties.
Where is the Discovery Examination?
Prior to the pandemic, discovery examinations took place in person. Since the pandemic, in-person discovery examinations shifted to zoom video conferencing and this trend has continued as a matter of convenience. However, in certain cases involving numerous documents or technical hands-on exhibits (items or documents that will be shown to the Plaintiff and later tendered as evidence at a trial), an in-person discovery may be required. This is particularly so with product liability cases.
If a discovery examination is to take place via zoom, the Plaintiff may complete the examination in their home or somewhere where the Plaintiff will have access to a room and be undisturbed by other persons. The Plaintiff will not be allowed to have other people in the room, with the exception of his/her lawyer. The Plaintiff will need to ensure that they have a working camera, microphone, and set of speakers hooked up to a computer or mobile device.
Some of our clients prefer to attend our office for zoom discovery examinations to eliminate technical issues associated with a poor internet connection within their home. We encourage this where possible so our lawyers may be physically present with the Plaintiff.
What is the Purpose of a Discovery Examination?
There are many objectives to an examination for discovery including the following:
To learn the evidence of the opposing party
To discover the strengths and weaknesses of the other side’s case
To pin down the opposing side to certain statements which can be used to build an effective cross-examination at the trial (if the party gives a different answer at trial they can be contradicted/impeached with their discovery evidence to undermine their credibility)
To obtain helpful admissions
To assess how the opposing party will appear as a witness at trial
From the Plaintiff’s lawyer’s perspective, a successful discovery examination will enable the lawyer to fully uncover the evidence upon which the Defence will be relying to support its position. Typically, the Plaintiff’s lawyer will be focused on the liability portion (determining whether the defendant was negligent and such negligence caused the Plaintiff’s injury) of the lawsuit when examining the defendant. The Plaintiff’s lawyer will attempt to obtain helpful admissions, pin the defendant down to certain statements and a very specific version of events, uncover unknown evidence so as to avoid surprises at trial, and assess the Defendant as a witness (for example, is the Defendant likable or argumentative and hostile? Is the Defendant a reliable, honest, and credible historian or does the Defendant have a poor memory or is otherwise dishonest?).
From the perspective of the Plaintiff, a successful discovery examination entails the Plaintiff fully disclosing all relevant answers to the questions being asked in an honest, cooperative, credible, and reliable manner. The answers should support the Plaintiff’s theory of the case and typically Plaintiff’s counsel will know most of these answers in advance as they will have consistently interviewed the Plaintiff prior to discovery examinations.
What Types of Questions Will be Asked at a Discovery Examination?
Defence Counsel will typically ask questions in relation to two main topics at a discovery examination: liability and damages.
The first major topic is liability, which is concerned with determining who is at fault for the incident that caused the Plaintiff’s injuries. For example, in a motor vehicle accident case, the Defendant will try to understand how the accident happened. The Defendant will ask specific questions about the Plaintiff’s speed, direction, vision, ability to avoid the accident, whether the Plaintiff was wearing a seatbelt, the condition of the road, the weather, the condition of the Plaintiff’s vehicle, whether the Plaintiff saw the Defendant’s vehicle and if so to describe what the Defendant’s vehicle was doing. Defence counsel will try to pin down the Plaintiff to specific answers in the above areas.
The second major topic is damages. This is essentially concerned with how the accident impacted the Plaintiff’s daily functioning and involves a comparison of the Plaintiff’s pre-accident versus post-accident functioning. Defence counsel will ask about the Plaintiff’s pre-accident recreational activities, pre-accident health, pre-accident employment, and pre-accident housekeeping responsibilities. Typically, Defence counsel will already have received records documenting these areas of the Plaintiff’s life. The Defence lawyer will then ask questions about the Plaintiff’s injuries sustained in the subject incident and how these injuries have impacted the Plaintiff’s functioning with respect to employment, recreational activities, housekeeping responsibilities, and whether the Plaintiff requires additional medical care or rehabilitation support as a result of these injuries.
After the discovery examination has concluded, the Defence lawyer will likely cross-reference the Plaintiff’s evidence at a discovery examination with other records produced throughout the lawsuit and any social media sites belonging to the Plaintiff. A Defence lawyer will also likely retain a private investigator to obtain video surveillance of a Plaintiff.
The Defence lawyer will then try and see whether these sources (social media, medical and employment records, surveillance) contradict the Plaintiff’s evidence in a material way. For example, a plaintiff who fails to disclose a serious pre-accident medical condition may end up damaging their credibility and their case. Alternatively, a material contradiction might exist where the Plaintiff has given evidence that his/her injuries are severe enough to prevent him/her from working, traveling, and playing golf. Meanwhile the Defence has obtained social media photos and videos of the Plaintiff rock climbing while vacationing in a tropical paradise or video surveillance of the Plaintiff kickboxing at a local gym.
If there is a serious contradiction between the Plaintiff’s evidence and other sources of evidence, the Defence lawyer will then argue that the Plaintiff is not credible, and his/her evidence should be rejected. If the Plaintiff’s credibility is successfully undermined, then a jury or judge will have a difficult time accepting the Plaintiff’s claims and will likely reduce damages accordingly. Credibility is the most important asset to a Plaintiff’s case.
As such, the cardinal rule at a discovery examination is to answer all questions truthfully. Experienced lawyers will advise the Plaintiff to be completely honest and forthright about his/her pre-accident and post-accident functioning, otherwise the Plaintiff risks damaging his/her credibility and therefore his/her case.
How Should I Prepare for a Discovery Examination
The following tips may help in preparing for a discovery examination:
1. Relax. Television has led us to believe that discovery examinations (or depositions in the United States) are hostile encounters between opposing lawyers and the parties. In reality, most lawyers are cordial with one another and will only object where certain questions are irrelevant. Usually, Defence lawyers have no desire to mistreat or intimidate injured Plaintiffs during a discovery examination and will be quickly rebuked by Plaintiff’s counsel if they do so. Discovery examinations can be thought of as a formal conversation between the Plaintiff and the opposing lawyer about how an incident impacted the Plaintiff’s life.
2. Review documents to establish a rough timeline. Plaintiff’s counsel will review documents with their client prior to a discovery examination to refresh the Plaintiff’s memory. Plaintiffs are not expected to have a perfect memory of all events that transpired over several years. However, they should have a rudimentary timeline of events. It must be remembered that the Plaintiff’s lawyer cannot tell you what your evidence should be but can only help refresh your memory with the assistance of documents. At the end of the day, the lawyer cannot give evidence on behalf of the Plaintiff and the evidence must come from the Plaintiff himself. As such, reviewing documents may assist the Plaintiff’s memory in important areas.
3. Conduct a mock discovery examination. Plaintiff’s counsel will typically conduct a mock examination of the Plaintiff in the relevant areas to warm them up for a discovery examination.
4. Don’t guess, even if you are trying to be helpful. It is important to not guess when responding to questions. During a discovery examination, a Plaintiff is under oath. If a Plaintiff is guessing the answers to questions, which subsequently turn out to be false, the Defence will argue that the Plaintiff is not credible, not reliable, or careless with his/her answers. This will be the case even if the Plaintiff is trying to be helpful when guessing answers. In certain scenarios, the Plaintiff may provide a best estimate and should be clear to state that their answer is an estimate, but they should never guess.
5. Stick to what you know. This is similar to the rule against guessing answers. It is inappropriate to try and infer what another party or witness was thinking or “must have seen” at the time of the accident. For example, a Plaintiff may be tempted to state that a defendant must have been on their phone at the time of a car accident and therefore did not see the Plaintiff before rearending his/her vehicle. This may or may not be true. Perhaps the Defendant did see the Plaintiff’s vehicle but could not stop in time because they were changing their shoes (this may sound strange, but this has happened!). Drawing unknown inferences about what another party has seen is another form of guessing that may unnecessarily undermine the Plaintiff’s credibility.
6. Stick to the question. It is important for Plaintiffs to listen to a question and provide a comprehensive answer to that question only. Some Plaintiffs may be tempted to continue talking and provide superfluous information that goes beyond the scope of the question. This will only open the Plaintiff up to more unnecessary questions and potentially damaging answers. It will prolong the discovery examination. This tip is particularly important during the liability portion of the examination.
7. Do not be evasive. While Plaintiffs should provide precise answers and avoid providing unnecessary information as per the tip above, Plaintiffs should also avoid being difficult and providing very brief answers where a more fulsome explanation is required. For example, if a Defence lawyer asks how an injury impacts a Plaintiff’s functioning, it would be a missed opportunity for a Plaintiff to merely reply “it hurts.” After all, the discovery examination is an opportunity for the Plaintiff to impress upon Defence counsel the nature of her injuries and how these have impacted her life. The Defence lawyer will be reporting their opinion of the Plaintiff to the insurer (who ultimately determines what to offer the Plaintiff) and as such it is better to leave a positive impression with the Defence lawyer than to antagonize the Defence lawyer.
8. Objections. Do not answer a question if your lawyer objects. Unlike American legal shows where lawyers constantly object to questions, lawyers at a discovery examination will infrequently object to questions but will do so if a question is improperly phrased or irrelevant. Typically, objections are infrequent amongst experienced counsel who know to ask proper and relevant questions. If an objection is made, stop talking.
9. Undertakings? The Defence lawyer may ask the Plaintiff’s lawyer to undertake to provide a certain answer or item. These are known as undertakings with which Plaintiff’s counsel must comply. These are typically requests for relevant documents such as medical records not previously provided.
10. Do not answer a question you do not understand. Ask the Defence lawyer to rephrase the question.
Hopefully this article has provided you with a better understanding of the discovery process. This article is not intended to be an exhaustive preparatory guide but is meant to provide a basic understanding of the process of a discovery examination, the types of questions that will be asked, and some guidance as to how to prepare for a discovery examination.
If you have been injured as a result of someone’ negligence, call Hillier & Hillier at 905 453 8636 for effective representation.