Examinations for Discovery (“discovery”) are an important procedural step in the personal injury litigation process in Ontario. This process is an opportunity for both parties to the lawsuit to find out what the other party’s claim or defence is and gain all of the facts and evidence. This allows the parties to gather necessary information and assess the strengths and weakness of their adversary’s case.
WHAT TAKES PLACE DURING THE EXAMINATION FOR DISCOVERY?
The discovery process is a procedural step where one party asks the opposing party (through their lawyers) questions about the matters being disputed in the lawsuit.
Discoveries occur in almost every civil lawsuit and are set out in and governed by the Rules of Civil Procedure. The person answering questions must swear an oath. All of the questions and answers are recorded by a reporter and can be produced at a later date in a written transcript.
The lawyer who is asking the questions has the right to ask both broad and very detailed questions that relate to the lawsuit. The lawyer representing the person being questioned must ensure that all of the questions being asked are relevant and appropriate, and will make objections to any improper questions asked of his/her client.
During the discovery, your lawyer will ask the “at fault” party some simple questions and some focused questions in order to learn all of the evidence related to the lawsuit.
The lawyer for the “at fault” party also has an opportunity to ask you, the Plaintiff accident victim, questions regarding the details of the accident and your injuries.
Prior to the discovery, all important documents related to the lawsuit have been exchanged by the lawyers. These documents usually include clinical notes and records, employment documentation, accident reports, and any medical expert reports. The lawyers will review the documents and likely ask questions at the discovery related to the information provided by the documents.
WHERE DO EXAMINATIONS FOR DISCOVERY TAKE PLACE?
Discoveries are typically held at offices specifically set up for this purpose.
However, they may also take place at a law firm’s boardroom, a hotel conference room, or any office that is private and large enough to accommodate the number of people required to be present for the discovery. The parties to the lawsuit, the lawyers, and a court reporter are required to be present during the discovery.
As a general rule, parties to the lawsuit have to right to be present when the opposing party is being questioned. However, most parties do not exercise this right.
TIPS FOR THE INJURED PLAINTIFF’S ATTENDANCE AT A DISCOVERY
- Arrive early to the discovery location to get familiar and comfortable with the office and the surroundings (i.e. location of the washrooms, water, coffee).
- Be polite, courteous, and friendly.
- Listen carefully to the question that is being asked in full before providing an answer. It is important to only answer the question being asked honestly and to the best of your ability.
- Always tell the truth. If you cannot remember, simply respond to the question by saying that you cannot remember.
- Do not guess. If you do not know the answer, respond by saying that you do not know the answer.
- If you do not understand the question, let the lawyer know that you do not understand the question and the lawyer will re-phrase it for you.
- Prepare yourself for the discovery by refreshing your memory of the details surrounding your accident and the medical attention that you have received since the onset of your injuries.
- Answer verbally only. Providing an answer by nodding your head or uttering “uh-uh” will not be picked up by the audio recording. It is essential that all answers are verbal and are provided in loud and clear voice.
- Request a break, if necessary. Your level of comfort is important and if you require a break to stretch or use the washroom, you are permitted to request a break.
At Jasmine Daya & Co., we have experience assisting injured victims with their personal injury claims. If you have been injured as the result of someone else’s negligence, we can provide knowledgeable legal advice. Our personal injury lawyers take the time to ensure that our clients understand the litigation process and feel comfortable progressing with their claim. To discuss a personal injury matter, please contact our office online or at 416-967-9100 to schedule an appointment.