Alix Digout – February 2019
Most people involved in personal injury claims have little knowledge of the discovery process beyond what they watch on Suits or The Good Wife (note: this step in the litigation process is commonly referred to as a “deposition” in the United States and in prime-time legal dramas).
A discovery examination is a fact-finding step within the litigation process which is started after a lawsuit has commenced. Specifically, it is an opportunity for lawyers for the parties to a lawsuit to ask questions and obtain answers (and therefore evidence) under oath. While discoveries are generally not as dramatic as portrayed on television, they can seem intimidating if you have never attended one. A discovery typically takes place in a board room of a lawyer’s office. Your lawyer and lawyers for other parties are present, in addition to a discovery reporter who will tape what is said at the discovery.
Here are a few tips on how to prepare for, and successfully complete, a discovery examination:
- Familiarize yourself with the documents – The thought of having to remember specific details about an event that may have happened years earlier can be daunting. A discovery is not a memory test. Documents relevant to your claim are compiled within an Affidavit Disclosing Documents (“ADD”) and are exchanged between the parties prior to the discovery. An ADD will typically include medical records, income loss information, statements, accident reports, etc. Reviewing the ADD in advance of the discovery will help familiarize yourself with its contents and provide reminders of details and dates you may have forgotten.
- Be aware of your personal presentation – In addition to obtaining your under-oath evidence, opposing counsel will use your discovery to see how you will present before a judge at trial. The questioner is looking to see if you are credible, forthcoming, easily agitated, evasive, likeable, etc. They will report back to their client regarding your presentation and it will form part of their risk assessment as to whether they should settle the file or proceed to trial. It can be helpful to think of the discovery process as a job interview. You should dress and conduct yourself as if you are trying to get hired by a potential employer. Being friendly and cordial is encouraged, but refrain from cracking jokes to lighten the mood, as this can negatively impact your presentation.
- Speak in a clear voice – A court reporter will be present to make a digital audio recording of the discovery examination, which is later transcribed to create a written record of the events. Because the process is recorded, you will need to verbalize your responses. While it is human nature to nod or shake your head to signal “yes” or “no”, it is important for clarity within the written transcript to give audible answers. Wait for the questioner to finish their question before responding and be mindful not to speak over the questioner, as it also creates confusion within the transcript.
- Listen to the whole question before responding – Wait and listen to the question in full before providing a response, even if you think you know what the questioner trying to ask. This ensures you are answering the question directly and not providing extraneous or irrelevant details that may be harmful to your claim.
- Tell the truth –The importance of responding to questions honestly cannot be overstated, as you are giving under oath evidence which can be used to discredit you at trial. Therefore, it is extremely important to testify accurately. It is perfectly acceptable to say “I don’t know” instead of guessing or feeling pressured to provide a response you are unsure of. It may seem innocent enough to estimate or assume, but you are committing yourself to this evidence now and at trial. For example, if at discovery you tell the questioner you were driving 80 kilometers per hour, and then later at trial you say it was 50 kilometers per hour, opposing counsel will expose this to the Court and argue that your testimony is unreliable. Similarly, be mindful of making sweeping statements or exaggerations.
- Tell your story – Discoveries are the only time opposing lawyers can ask you questions directly in advance of trial. In personal injury matters, the only knowledge and understanding opposing counsel has of you and your life comes from the documentary evidence exchanged prior to the discovery in the ADD. Think of the documentary evidence as an outline in a “paint by numbers drawing” and the discovery as your opportunity to inject colour by giving details that only you can provide regarding the impact of the accident on your life.
- Your lawyer is listening – Your lawyer cannot provide evidence on your behalf during the discovery. Instead, they are there to support you and protect you from questions that are irrelevant or misleading. While some questions may not seem relevant to you, they are likely important for the greater “paint by numbers” canvas of your claim. Trust that your lawyer is listening and will interject when required (for example, if they have an issue with the relevance of a question or if it is inappropriate). If your lawyer has not expressed an issue with a question you are being asked, know it is relevant and you should respond accordingly. If your lawyer does take issue with a question, you should refrain from responding until your lawyer tells you it is okay to do so.
- Take breaks – The discovery process is a marathon, not a sprint. On average, plaintiff discoveries can last 4-5 hours. You are not expected to sit for the entire discovery without taking breaks. It is common for people to feel overwhelmed during the discovery process due to the sensitive nature of certain questions. You may also have difficulty sitting for long periods of time due to the ongoing impact of your injuries. Do not hesitate to ask for a break to collect your thoughts, regroup, take a quick walk, stretch, or to grab a refreshment. So long as the recorder can accurately capture your responses, feel free to stand up and move around during the discovery (within reason) if it will help limit a flare-up of your injuries.