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10 tips for examination for discovery of the litigation.

Apr 7, 2021 | Legal Articles

Stefanie Pereira

Personal Injury Lawyer

Examination for discovery is a critical and important part of the litigation process. At an examination for discovery parties will provide sworn testimony in the form of questions and answers that is given before a court reporter. The purpose of the examination is for the other party to discover the details of the claim being made. The evidence provided at the examinations allows lawyers to assess the strengths and weaknesses of the case; and the credibility of the witnesses.

Some cases are settled before the examinations for discovery, but cases that are not settled in the early stages of the litigation, will undergo examinations for discovery.

Tips for your Examination for Discovery

10 tips for examination for discovery At Grillo Law, our lawyers will work closely with you to best prepare you for your discovery. Your discovery preparation meeting will be catered to your specific case and will allow you to practice being examined by a lawyer. Below you will find 10 general tips for how to be a great witness at your Examination for Discovery:

1. Inform yourself of the relevant facts

It pays to be knowledgeable about your case and the relevant facts. Try to refresh your memory of the details surrounding your accident and the medical attention you have received over the life of your claim. Be honest and straightforward when answering questions. Answering opposing counsel’s questions with uncertainty or too many “I don’t know” will make you appear less credible.

2. Tell the truth

You will be under oath to tell the truth and must answer questions truthfully. Telling the truth will always be to your benefit, and inconsistencies in your story will harm your case and make it more difficult for you and your lawyer to obtain compensation. If you are worried about something being harmful to your case, tell your lawyer before you examination. Your lawyer will be able to talk you through that concern and will be able to prepare for that issue in advance of your discovery. Be honest and straightforward throughout your entire examination.

3. Your evidence will be used against you

The purpose of the examination is to discover or collect your oral testimony about your claim. There will be an audio recording of the examination for discovery, as well as a transcript of the questions and answers. The testimony provided at the examination for discovery can be used against you at a trial to impeach your evidence. Essentially, you must stick to the evidence given at the examination. If you deviate from the story you told at your examination for discovery, the other party could use the discovery transcript to highlight inconsistencies in your story-telling and suggest to the court that you are not a credible (honest) witness.

4. Listen carefully

In order to answer a question honestly, you must understand the question. To understand a question, you must listen to the complete question carefully. Only answer the question that is asked; nothing more, nothing less. If you do not understand the question, you must let counsel know and you should provide an answer only when you understand what is being asked.

5. Do not guess

Guessing can obscure the details of the case, or worse, be used against you to refute your other claims. If you do not know, just say so. No need to feel ashamed for not genuinely knowing something. If you do not remember an answer to a question, then the correct and truthful answer is “I don’t remember”.

6. Think before you speak

A good client thinks before he/she speaks. It is important to think about the question before providing an answer. This will ensure that you have fully heard the question and understand what is being asked. Thinking about your answer before speaking will allow you to provide a short, straight-forward answer. Keep your answers short and to the point. If counsel wants you to explain your answer, they will prompt you for an explanation. There is no need to give extraneous information.

7. Avoid absolutes like “Always” and “Never”

In normal conversation, people commonly exaggerate for emphasis or effect. However, you should never exaggerate at your examination for discovery. Words are taken literally at the examination so when you answer a question with a term like “never”, counsel is going to literally take that to mean that you never, ever, not even one time, did that particular activity. Be specific with your answers and do not limit yourself by making absolute statements.

8. Verbal answers only

Due to the audio recording during the examination for discovery, you need to provide loud and clear verbal answers to each question. You cannot answer a question with a head nod or shake. Utterances like “um-hmm” or “uh-uh” cannot be picked up on the audio or transcript. Your examination for discovery is a serious step in the litigation, but it is not a theatrical performance. When describing activities or movements, do not make motions with your body or hands; there is no video recording during the examination. When describing areas of pain in your body, do not point to the area; say what the area is and describe the pain verbally. At no time during your examination for discovery should you be acting out any activity or event.

9. Stay calm and be nice

Many people understandably feel pressured when questioned by opposing counsel. However, there is nothing to be worried about. Your lawyer at Grillo Law would have prepared you for your examination and will be sitting right next to you the whole time! As long as you are telling the truth, there is nothing to worry about. First impressions are important and in most cases, the examination for discovery is the first time that the opposing lawyer gets to meet you in person. They will be assessing your demeanor and character. Generally, clients that leave a good first impression on the opposing lawyer get a better result. Be honest, be polite, and try to smile and make eye contact during the examination.

10. Do not overthink

Remember that the examination for discovery is only the initial “breaking the ice” moment of your case. There is plenty of work that the lawyers will do afterwards. As a result, we highly recommend that you do not overthink things, or try to anticipate the direction that the opposing lawyer is trying to take. You may lead yourself into a trap. Furthermore, refrain from arguing your case with the other lawyer. That is what your lawyers are there for, and the examination for discovery is not the time nor place for that. Rest assured that we here at Grillo Law will have your back. We have over 30 years of experience dealing with cases such as yours and we will work closely with you to guide you through the process of an examination for discovery.

What is the Examination for Discovery Process in Ontario?

Examination for Discovery An Examination for Discovery is the perfect opportunity for both parties in a personal litigation law suit to collect evidence related to the case. They can discover what the other side plans in terms of claims and defence. Both lawyers will be present with their clients. The Examination for Discovery is a questioning process where the parties through their lawyers find out more about the matters under dispute. Almost every civil case includes discoveries. They are governed by the Rules of Civil Procedure. The person being questioned is under oath. Everything is recorded in writing. The result is a verbatim transcript that both parties can use at trial. The lawyer may ask very detailed questions with regard to the case in question. The opposing lawyer must protect her client and make sure that he is fairly treated. She does this by ensuring that the questions are pertinent and applicable to the case. If she is not happy with the questions, she has the right to object. During the procedure, the at fault party will have to answer broad and more pointed questions as the claimant’s lawyer attempts to learn all the facts pertaining to the lawsuit. The opposing lawyer has an equal duty to ask the claimant detailed questions about the accident and the resulting injuries.

Why Have Examination for Discovery?

An Examination for Discovery is a useful procedure for both parties. It offers both sides an opportunity to get an inside view of the claims and defence. During this procedure that lawyers will have prepared pointed and detailed questions pertaining to the accident and the injuries. Since the proceedings are recorded in writing, it is possible after the fact, to go through all of the proceedings with a fine toothcomb to come up with the details of the accident and the injuries incurred. The opposing lawyer gets a chance to examine your strengths and weaknesses. He can see how well you hold up under examination and weigh up how the jury is likely to react to you. He gets a chance to hear your side of the story. It also forces you to commit to the facts of the accident. If your answers aren’t consistent at the trial, you’ll lose credibility and you’re likely to face fierce cross examination if the details change. It is imperative to have an experienced lawyer in your corner to be able to skillfully cross-examine the defendant prepare your affidavit of documents and supporting evidence, attend with you through your discovery and help prove your case.

Grillo Law can help you

At Grillo Law, we have acclaimed leaders who are renowned in their specific fields of medical practices, including medical professors with many years of experience working with accident victims and people battling trauma. Our network of industry experts is impartial. They have been qualified by Toronto Courts as top experts in their specific fields of practice. These professionals will stand by your side and help you fight against the giant and highly resourceful insurance providers.