What is an Examination for Discovery?
Examinations for Discovery are normal. They occur in nearly every civil action (personal injury, or not), in Ontario.
This is an opportunity for your personal injury lawyer to ask the Defendant at fault driver, or insurance adjuster a series of questions which are answered under oath. Your lawyer will ask the at fault party some very simple questions, along with some more pointed questions in order to get more evidence about the case at hand.
The same way your personal injury lawyer gets to ask the at fault party questions; the lawyer for the insurer gets to ask the Plaintiff accident victim, or Plaintiff disability claimant questions of their own.
The insurance defence lawyer will also ask some very simple questions like:
What’s your name?
Whats’ your current address?
What’s your date of birth?
Are you married?
Do you have any dependents?
What is your highest level of education?
Where were you working before the accident?
The insurance defence lawyer will also have some very pointed, more specific questions for you about your case:
Do you recall telling Dr. Smith that your back hurt on such and such a date?
On a scale of 1-10, how would you rank the pain in your back?
Would you describe the pain in your neck as a sharp stinging pain, or a dull ache?
Would you describe the collision as a light, medium or heavy impact?
Do you recall hearing the sound of a honking horn, or tires screeching prior to the collision?
How many car lengths were between your vehicle, and the other vehicle the FIRST time you saw it? What about the SECOND time you saw it?
How much time elapsed between the time you saw the at fault vehicle and impact?
Do you recall what Dr. Smith said to you at your medical appointment on September 10,1982? (of course you don’t, this was all the way back in 1982!!!)
What happens if I can’t remember the answer to a question, or if I don’t understand?
That’s perfectly OK! Most personal injury clients can’t recall every appointment they’ve ever had because there have been so many. These memory problems are compounded by chronic pain, or even worse, a traumatic brain injury which has depleted both your short term and long term memory.
If you can’t recall the answer, then do what we tell our clients to do:
- Don’t lie
- Don’t guess
- Don’t make things us
- If you can’t remember, then say that you can’t remember!
- If you don’t understand the question which the lawyer is putting to you, then say that you don’t understand and the lawyer will re-phrase the question
But, I can’t say I blame them. And here’s why:
- The Discovery process is inherently UNFAIR in personal injury claims. Bold statement? Sure. But take this in to consideration: Generally, there is an unsophisticated accident victim who has never been through a discovery before and doesn’t know what to do, what to say, or how things work vs. an intelligent lawyer who conducts examinations for discovery for a living!!!! Prep from your injury lawyer will help, but the reality is that no amount of prep time can ever get an accident victim completely ready other than having conducted or seen dozens of discoveries beforehand.
- The personal injury lawyer who represents the accident victim CANNOT provide evidence for their client. They can refuse questions, but they cannot answer for their client at discovery.
- There is an inherent power imbalance at discovery. Smart university educated lawyer licensed by the Law Society of Upper Canada to practice law in the province of Ontario vs. non-lawyer (and often of lower education) and injured accident victim in a legal forum. If you were a betting person, you would be on the lawyer 10/10 to win this battle. It’s like a lion vs. a lamb in a legal death match of sorts.
- Putting your pain in to words is difficult. Being articulate with your accident related deficits is difficult as well. Writers spend hours, days and months preparing their stories. An injured accident victim is expected to orally tell their story off the top of their head, on the record, in front of total strangers. Not the most ideal forum. Some people aren’t story tellers. Some people are private and don’t like or don’t know how to share their feelings and emotions aloud. But at Examination for Discovery, you are expected and required to do so.
- Lawyers are quick to judge your case at discovery. Discovery lasts one day, sometimes more if it runs on too long, or needs to end early. In any event, the impression which the deponent provides that day is reported back to the insurer and impressions are made (for good or for bad). The lawyer for the insurer does not go home with you and see how you live or struggle at your home. They don’t see you the next day and follow up with your pain and suffering. That one day impression is important, and it’s often not an accurate depiction of how the accident victim is coping with their post accident pain or disability. But that’s how the Canadian Judicial system works: You can’t bring a Judge and Jury home with you, to live under your roof for a week or so to see what your everyday life is like, and how you cope with your daily activities. At law in Ontario, you’re put on the stand to provide evidence. The evidence you give on the stand is used to assess the merits of your case. That’s how cases are presented.
Where do Examinations for Discovery take place?
Examinations for Discovery can take place at a Reporter’s Office, at a law firm’s Boardroom, in a hotel conference room. Anywhere private and large enough to accommodate the amount of people for the discovery.
What should I wear at discovery?
Dress normally. No need for a suit/tie or dress. At the same time, offensive slogans on shirts, or unkempt pants are not appropriate either.
Can I take breaks at discovery?
Yes you can! Take as many breaks as you like! You’re NOT a prisoner to your chair. If you and your personal injury lawyer need to return another day because you’ve run out of time, then so be it.