What is an Examination for Discovery?
Examination for discovery involves in-depth questioning under oath or affirmation by the opposing side’s lawyer. The lawyer on behalf of the Plaintiff questions the Defendant, and the lawyer on behalf of the Defendant questions the Plaintiff. Examination for discovery is a routine and necessary step in most lawsuits because it is how the parties can understand and test the other side’s case.
What are the goals of an Examination for Discovery?
One of the goals of an examination for discovery is to obtain favourable admissions from the opponent that could strengthen one’s position or weaken the opposing position. Examination for discovery also provides a preview of the evidence that will be brought out at trial. During questioning, a Plaintiff or Defendant’s statements are transcribed and result in a transcript that can be read-in at trial or used to impeach a witness’ testimony if their evidence is different at trial than it was at their examination for discovery.
What is an affidavit of documents?
Before examination for discovery, the parties exchange affidavits of documents, which contain all documents relevant to any matter in issue in the lawsuit that are in the party’s possession, control, or power. Typically, the matters in issue in a lawsuit are liability (determining responsibility for the incident) and damages (determining the extent of the losses resulting from the incident).
To the extent a document assists in making either of those determinations, it must be produced in the affidavit of documents. For instance, these documents could include photos of the incident or injuries, incident reports, hospital and medical records and employment or school files.
The affidavit of documents must also list all documents which are being withheld on the basis that they are privileged, as well as the documents formerly but no longer in a party’s possession, control, or power. Reviewing these documents beforehand is how lawyers determine the questions to pose during examination for discovery.
What to expect at an Examination for Discovery?
Whether by videoconferencing software such as Zoom or in-person, an examination for discovery usually involves at least four individuals. The person being examined along with his or her lawyer, the opposing lawyer asking the questions, and the court reporter who ensures the questions and answers are being accurately transcribed. At the start of the examination for discovery, the person being examined will be asked to take an oath or affirm that the answers they are about to give will be the truth.
Examination for discovery is invasive, particularly for Plaintiffs who have been injured or suffered a loss as a result of the incident because the scope of relevant questions is broad. Defendants—through their lawyers—are entitled to explore the extent of the Plaintiffs’ injuries or losses that resulted from the incident.
What types of questions will be asked during an Examination for Discovery?
Physical or psychological injuries or impairments lead to questions about one’s health, including pre-existing conditions. The extent to which the incident or injuries resulted in increased care needs is addressed through questions about medical treatment, housekeeping and chores. Loss of income or earning capacity is investigated by questions about education and employment history. Questions will also be directed at the incident which gave rise to the lawsuit in order to obtain the Plaintiff’s side of the story.
These questions also invariably lead to requests for the corresponding records that were not already contained in the affidavit of documents, such as further medical records, prescription summaries, and employment files.
In a typical Plaintiff’s discovery, the questions can be broken down into the following categories, though they will not necessarily be asked in this order. Questions about:
- A Plaintiff’s health and physical/psychological functioning before the incident.
- A Plaintiff’s functional abilities before the incident, including their daily routine, employment responsibilities, and home maintenance abilities.
- The time after the incident. Defendants can approximate the extent of the injuries and losses caused as a result of the incident by determining the changes to the Plaintiff’s life before and after the incident.
- The Plaintiff’s recollection of the incident.
Guiding principles for responses at an Examination for Discovery
Telling the truth is the most important part of an examination for discovery. If you are unsure about an answer, say you are unsure. Do not guess the answer to a question. Guessing can cause issues in the lawsuit should the answer later turn out to be incorrect.
Listen to the question and answer only the question. Simple “yes” or “no” answers are allowed. It is not necessary to volunteer more information than is being asked or to explain or justify answers without being prompted. Lawyers can and will ask follow-up questions, they do not need their job to be done for them by having information volunteered to them before they ask for it.
How can I prepare for an Examination for Discovery?
Examination for discovery is a difficult process that can be made more manageable with preparation. Choosing the right law firm that will prepare you for examination for discovery is critical. The lawyers at Bogoroch & Associates are highly experienced and thoroughly prepare our clients for this critical part of their lawsuit. If you have been injured, contact Bogoroch & Associates for an assessment of your case.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.