Your personal injury lawyer may have shared the term “Examination for Discovery” with you when describing the next step in your case.
This may be the first time you’ve heard this legal term.
Understanding what it means to participate in an Examination for Discovery, and why a discovery is important for your personal injury case, will help you better understand and make you feel more comfortable with your case. An understanding and more comfortable client will perform better when it matters most.
After reading this Toronto Injury Lawyer Blog Post you may likely still be nervous for an upcoming Examination for Discovery.
Rest assured; these feelings are NORMAL! It’s perfectly normal to get nervous or anxious to participate in a discovery if you’ve never done one before. Even if you have participated in one, you never know what to expect.
Unless you’re a lawyer who has done hundreds or thousands of Examinations for Discovery, you will likely have a hard time sleeping the eve of discovery on account of nerves. Use those nerves to your advantage to keep you sharp and alert throughout the discovery process instead of having those nerves work against you.
WHAT IS THE PURPOSE OF AN EXAMINATION FOR DISCOVERY?
An Examination for Discovery is likely the first time that the lawyer for the Defendant insurer gets to meet the injured Plaintiff, face to face; and hear them speak in their own words about the accident, their injuries, and how their lives have been impacted.
This exchange is very important. It provides the lawyer for the Defendant an opportunity to “discover” the Plaintiff’s case; hence the term “Examination for DISCOVERY“.
Evidence at discovery is done under oath, and recorded. There is a transcript of the discovery which can later get printed; and then used at trial to impeach the Plaintiff. The impeachment process is an important tool for all lawyers in order to damage the credibility of a party or witness.
At Discovery, the Plaintiff stated that light was yellow when their car was travelling through the intersection. Below is an example of what the transcript from the Examination for Discovery might say:
Q: Are you sure the light was yellow?
A: Yes. It was yellow.
Q: Did you hear any other vehicles honking their horns, or the sound of screeching tires?
A: No. The only sound I heard was the sound of the impact of the collision.
Q: Thank you. Those are my questions.
Later at trial, the same Plaintiff who was examined for discovery takes the stand, swears on the bible, and gives the following evidence with respect to the colour of stop light:
Q: What colour was the traffic light?
A: It was green.
Q: Was it a solid green as your crossed the intersection? Did it ever turn yellow?
A: No. It was green the entire time as my car was in the intersection. I was clear to advance.
Q: Did you hear the sound of any other vehicles?
A: Yes. I heard a loud horn coming from my passenger side.
In this example, the Plaintiff essentially recounts two different versions of events to describe the same accident. At discovery they state that the light was yellow and that there was no sound prior to the impact. Yet at trial, they provide a different version of events.
In fairness to the Plaintiff, the accident likely took place a long time ago. Memories fade. Versions of events get clouded through the passage of time.
But, the law marches on and the system we have, is the system we have.
Which version of events is the Judge and Jury supposed to believe? Is the Plaintiff’s memory that poor, or are they making up a story to best suit their case? Perhaps this is their best memory, only it has changed over time. Can these clouded and conflicting memories be trusted as evidence in a Court of Law?
Likely not, but that’s up to a Judge and Jury to decide. The more seeds of doubt which a lawyer can plant through finding contradictions in evidence at trial vs. evidence at discovery, the less credible a witness or party will come off. The less credible they come off at trial, the less weight a Judge/Jury will put in to what they say at trial on all of their testimony.
This example illustrates the purpose of Examinations for Discovery and why they are so important to your case.
DO I HAVE TO ATTEND AT MY EXAMINATION FOR DISCOVERY?
The short and quick answer is “YES“, you do. If you fail to attend, the Court may dismiss/strike your case. You really don’t want that to happen.
HOW LONG WILL MY EXAMINATION FOR DISCOVERY LAST?
Discoveries can take all day. Some can take half a day. Some can take a few hours. It depends on the nature and complexity of your case. Another large part of the length of your discovery depends on the defence lawyer asking questions. The reality is that some lawyers are more verbose than others. Some are slower than others. Some are the opposite and are clear and concise. This is entirely out of your control, so you just have to roll with it as best you can (within reason).
You may take as many breaks as you like. You may take a lunch break. You may ask to have the discovery stopped, and then continued at a later date if you can’t get through the day. The discovery is all about you, so don’t be afraid to make yourself comfortable and ask for periodic breaks.
If the discovery goes too long, you may have to return another day to have it completed. That’s ok. It happens often, particularly with larger, more complex files.
Sometimes lawyers will argue during a discovery. That’s normal as well. If everyone agreed on all of the issues in your case, and the insurance company agreed to pay you what you want, then you would have no need to be involved in your litigation in the first place. Unfortunately, many cases don’t work that like that and there are many disagreements along the way.