If you’ve been in an accident and have suffered an injury, there’s a good chance you may have to deal with the examination for discovery process.
We’ve put together a few important tips and some possible topics that might come up to make sure you’re completely ready to get through your discovery with no setbacks. Keep reading to learn more about why this is an important step in the litigation process and what you should and should not do to get through it smoothly.
What is an Examination for Discovery (“Discovery”)?
A discovery is an important procedural step in the personal injury litigation process in Ontario. This process allows for both parties associated in the lawsuit to find out the details about what the other party’s claim or defence is. This gives both parties an opportunity to gather necessary information and assess whether there are any weaknesses in their adversary’s case.
Discoveries are done in person (although currently they are being done by Zoom), and are governed by the Rules of Civil Procedure. Parties must swear an oath before answering any questions put forward by the respective lawyers.
What’s the purpose of a discovery?
1. Initial assessment by defence counsel.
A discovery allows the defence lawyer to meet you and determine whether you will make a good and likeable witness in front of a jury.
2. Gather information.
Defence lawyers use this as an opportunity to gather all necessary information related to the claim and hear your full version of events.
3. Assess your credibility.
This is an extremely important objective. If the answers you provide are untruthful, even unintentionally so, they could harm or hinder your claim.
4. Determine your case’s strengths and weakness.
Knowing the full story, even the weak points, help both sides defend the case with more certainty.
11 useful tips for preparing for your discovery:
1. Do not ramble.
Think before you respond and provide short, concise, and to-the-point answers.
2. Do not go off on tangents.
Make sure you are only disclosing information that is relevant to the specific question.
3. Only elaborate when:
a. You are asked an open-ended question (For example, “Tell me how the accident happened”).
b. When talking about psychological or cognitive issues. These are harder to describe than physical pain or a series of events, so we encourage you to be as descriptive as possible about how the accident has affected your mental or emotional well-being.
4. Be truthful and do not exaggerate.
Don’t assume you will get away with a little white lie and don’t use inaccurate language. If you say “I can’t do an activity” that means you literally CAN’T and DON’T do it. If you do it with pain, then say you do it with pain.
5. If you don’t know the answer to a factual question, then say “I don’t know.”
This doesn’t apply to questions about the details of your injuries – you can’t say ‘I don’t know’ when asked about your pain, for example.
6. If you are not absolutely certain of an answer, then make that clear.
You can still answer the question but add a phrase like “as far as I can remember.” This is useful when talking about pre-accident medical history as it protects you if your memory is wrong.
7. Go slow
There will be questions that surprise you so remember to think before you speak and ask for clarification if you don’t understand a question.
8. Never ask if you have to answer a question.
As your lawyer, one of our jobs at discovery is to vet the questions being asked of you. If we don’t object to the question, you shouldn’t either. If you object, you risk making yourself look defensive or like you’re hiding something.
9. Show up looking presentable.
You don’t have to wear a suit, but we encourage you to wear clean and presentable business casual clothing.
10. Do not show up late.
Arriving even 1 minute late can work against you. Always try to arrive 30 minutes early, if possible.
11. Know the difference between “I don’t know” and “I don’t remember.”
One means “I don’t know the answer to the question” and the other one means “I may have the answer but don’t currently remember it.” There’s a big difference when it comes to a lawsuit so try to use the two phrases appropriately.
Specific topics that may be covered during a plaintiff’s examination for discovery:
1. Liability and how the accident happened.
You will likely be asked to give a second-by-second account.
2. Pre-accident medical history.
This will include a history of pain complaints or other health issues to determine which injuries were caused by the accident and which ones are due to pre-existing conditions.
3. History of prior accidents.
This includes any work-related injuries or other types of injury events.
4. Description of injuries.
- Detailed list of injuries.
- When you noticed each injury.
- Frequency of pain – is it constant or does it come and go? Has it gotten better or worse over time?
- Intensity of pain on a scale of 1-10.
- What helps the pain? Do you undergo any treatments, take medication, or must rest frequently?
- What brings on or makes the pain worse (standing, sitting, walking, lifting etc.)? And how much time can you perform each activity before experiencing pain?
5. Activities involved in your daily life
At home, social life, family life, recreational life. The more details you provide here, the better.
6. Work and ability to perform on the job.
Have you taken any time off? Has your injury affected your ability to complete tasks? It’s best to provide as many details as possible about how your injury has affected your ability to do your job.
7 . Social media check.
If there’s anything on your social media that shows you being active since the accident, this will damage your case.
If you’ve been in an accident and need help preparing for your examination for discovery, give us a call! We’ll walk you through the questions and concerns that you’ll encounter during a scheduled preparation meeting to make sure you’re ready to get through it without any difficulty.
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