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Benefit of the Doubt at an Examination for Discovery in a Personal Injury Case?

One of my young personal injury lawyers and I had a chat following an Examination for Discovery. He was quite surprised by the tone which the lawyers for the insurance company took with our client. The lawyers were mean, nasty, rude, snarky and did not give our client the benefit of the doubt.

Would that lawyer speak in that rude of a tone to a stranger? Nope.

Would that lawyer speak that way in a regular world setting outside of the law? Nope.

If that lawyer spoke that way in his/her everyday life, would they have any friends? Nope.

So it begs the question: why are lawyers so stern and mean, particularly during the discovery process?

There are many answers to this question.

For starters, not all lawyers are stern, rude and mean. For some, it’s their style. For others, they only have one tool in the tool box, and that’s the hammer. They aren’t charmers. They aren’t familiar with killing them with kindness. They aren’t well versed in getting more bees with honey than you do with vinegar.

I would also like to point out that the Discovery process is an unequal playing field.

The lawyer gets to ask questions.

The Plaintiff deponent has to answer those questions, under oath.

The lawyer is university educated, with a degree in law. This is not their first examination for discovery. They are not intimidated by the process, nor the stage.

The Plaintiff may be university educated, but likely not. And in the vast majority of cases, the Plaintiff does not have a law degree. Some do. But most do not. This is likely their first examination for discovery. It’s their first time being sworn in to tell the truth. It’s an intimidating stage needing to be in the hot seat and answer questions from an aggressive lawyer all day long.

If you took a poll, you would likely see that more people would rather attend at the dentist’s office rather than be examined for discovery. At least with the dentist office, the visit ends within an hour or so, and you get some prizes in the form of a free toothbrush or dental floss when you’re done.

There are not prizes after completing an Examination for Discovery. Perhaps a sigh of relief, but that’s about it. You’re completely drained with it’s over. It’s not just you. The lawyers are completely drained as well. And if they tell you that they aren’t drained, they’re not telling you the truth. It’s a mentally exhausting process.linkedin-2-300x300

With a discovery, not only can it last all day long, but you may need to return to answer further questions if not completed, or questions arising to your lawyer’s undertakings. It ends, but it doesn’t really end. What’s said is on the record, forever; and that record cannot be changed (save with few legal exceptions), which will invariably be argued in Court.

For some lawyers, there is a strategy of being mean or rude at discovery.

Tone is not reflected on the transcript. The transcript is written and does not pick up the tone of what’s being said. It’s only words on the page, and those words are all heard in the reader’s head, without tone or any inflection. There is no yelling on the page; unless someone states on the record something to the effect:

There is no need to raise your voice” or “please stop yelling” or “your rude tone is not appreciate nor necessary“. These statements will provide the context for how the questioning is being conducted. But the substance of those questions and answers is all the same given that it comes across as words on the page and nothing more.

Lawyers know this. So their tone, when reading over the transcript doesn’t come into play.

Lawyers also know that it’s likely the Plaintiff’s first time participating in a real litigation step with multiple lawyers, statements made under oath and a Court Reporter. An Examination for Discovery is a big deal. The lawyer for the Defendant wants to intimidate the Plaintiff to let him/her know that they are taking their case very seriously; and that they mean business. Defending their case is no joke, and they will go to every step necessary to defeat their claim and get costs against them. They want to send the message that if you bring your case to Court, we intend to bury you, to humiliate you, and to make your life miserable. Going to Court is no fun; messing with me and my client is no fun; and we want to scare you so that you drop your case, or settle for an amount which is much lower than you would expect.

Whether intentional, or not, this intimidation factor after the Examination for Discovery along with the potential of going to trial is very real, and very scary for the vast majority of Plaintiffs in personal injury cases. I can’t say that I blame them. The average person is not involved in litigation; let alone litigation against a multi billion dollar deep pocketed insurance company with unlimited resources. Going to Small Claims Court against your neighbors for a tree which fell on your property is one thing. Going to Superior Court on a multi million dollar personal injury case is a whole different ball of wax, with a different set of rules altogether.

A good discovery can elevate a case which needs elevating. A bad discovery can completely destroy a case, along with any prospect of settlement. If a lawyer for the Defendant isn’t buying what you’re selling; doesn’t find the Plaintiff credible, likeable or believable, the personal injury case likely won’t succeed or nor will it settle for an amount which the Plaintiff had hoped for, or came to expect at the outset of the litigation.

A few tips we have for our clients to avoid having a bad examination for discovery are rather simple. They include, but aren’t limited to:

  • Don’t lie
  • Don’t guess
  • Don’t make things up
  • If you can’t remember, say that you don’t remember. This doesn’t hurt your case. But it hurts your case if you make up a detail which isn’t true, or which you know is not the truth but is only your best guess
  • Guesses aren’t good. The truth of what you remember is good. And if you can’t remember something, read the tip above for a refresher of what to do.
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