By Matt Lalande in Hamilton Personal Injury Lawyer on October 24, 2024
In Ontario, an examination for discovery is a key step in any case, providing both sides in a dispute with an opportunity to question the opposing party under oath. This process is part of the discovery phase, where the goal is to gather evidence, clarify facts, assess the strengths and weaknesses of each party’s case—and assess a person’s credibility.
During an examination for discovery, the questioning takes place in a professional setting, often at a certified court reporting center or a lawyer’s office. There is no judge present. Instead, a court reporter records the entire proceeding, transcribing every question and answer into a written transcript. This transcript may later be used in court to verify statements or challenge inconsistencies.
Your lawyer will be present throughout the process to ensure that the questions asked are appropriate and to protect your interests. The lawyer representing the other party will conduct the questioning, which can cover a broad range of topics related to the case. They may ask about the circumstances of the dispute, relevant events, or any evidence that has been disclosed . Your lawyer’s role is to object to any improper questions and to ensure that the examination stays focused on the relevant issues .
Understanding this process can help reduce anxiety, as clients know their lawyer is there to guide and support them during the examination.
Many people experience anxiety about attending an examination for discovery, often fearing it will be a confrontational process or similar to a cross-examination designed to discredit them and their case.
This misconception can amplify anxiety, as clients may imagine aggressive questioning aimed at undermining their case. However, this is not the purpose of an examination for discovery. Rather, it is a fact-finding exercise that allows each side to gather relevant information about the case.
In personal injury cases, the opposing party often only has access to your medical records, meaning their knowledge of you is limited to what they’ve read. The examination is a crucial step that allows them to question you about anything not covered in the records, to clarify any unknowns, and to put a face to your file. Typically, the defence uses this opportunity to assess your credibility and gauge how you might present yourself in court.
The underlying anxiety is largely driven by the fear of the unknown—a common human experience. Many individuals have never been involved in a legal process before, and entering this unfamiliar territory can feel intimidating. The anticipation of a new experience, especially when it involves legal stakes, can make even the most prepared individuals feel uneasy.
Anxiety can be understood through various psychological theories, many of which shed light on why people may feel nervous about an examination for discovery. One such theory is the uncertainty avoidance model, which suggests that people tend to feel anxious when they face ambiguous or uncertain situations. In the context of an examination for discovery, the complete and total lack of familiarity with the process can create anxiety, as individuals do not know what to expect. A room full of lawyers can also be….intimidating to say the least.
Feeling nervous before an examination for discovery is entirely normal, especially when it’s an unfamiliar experience. Most people involved in litigation do not choose to be in this position; they are there because it is necessary to pursue justice or resolve a dispute. The nervousness often subsides as individuals become more familiar with the process, supported by their lawyer’s guidance and understanding of what to expect.
Acknowledging these feelings and recognizing that they are common can help alleviate some of the stress. Clients should remember that their lawyer is there to support them throughout the process, ensuring that the examination remains focused on the facts rather than becoming confrontational. Understanding that the examination is simply a step toward clarifying the facts of the case can help individuals approach the experience with more confidence and less fear.
One of the most critical aspects of a successful discovery examination is thorough preparation. Unfortunately, many lawyers do not adequately prepare their clients, often waiting until the morning of the discovery to review the process. This last-minute approach, which is a terrible idea, can leave clients feeling unprepared and anxious, significantly affecting their performance during the examination.
If your lawyer has not adequately prepared you – call his or her office and ask to make an appointment. Let them know that you would like to learn more about the process and that you would like to be more prepared – so that you will be successful at giving the best evidence you can.
Our Hamilton personal injury lawyers take a different approach. We start to prepare our clients for an examination for discovery 3 to 4 months in advance. This extended preparation period allows us to ensure that our clients are fully informed and confident about the process.
Here’s how we prepare our clients comprehensively:
Catch-up and Case Review: We start by scheduling a meeting with our clients. This allows us to revisit the details of the case and gather any updates, especially if new medical records or other relevant information need to be produced for the discovery.
Overview of the Discovery Process: During this early stage, we explain the purpose of the examination for discovery and why it’s happening. This helps to demystify the process and sets the foundation for more in-depth preparation later.
Document Production and Updates: We gather and review updated medical records, employment documents, and any other relevant information that must be disclosed. This ensures that both we and our clients have the most current details at hand.
In-Depth Preparation Session: About a week before the discovery, we hold a second, more focused meeting with the client. During this meeting, we prepare the client for the types of questions they might encounter. While it is impossible to predict every question, we structure our preparation into “buckets” or categories of likely topics:
Mock Question Scenarios: For each of these buckets, we walk through potential questions, helping the client formulate clear and honest responses. This approach ensures that while we can’t predict every specific question, the client is well-prepared to discuss the key aspects of their case with confidence.
By the end of this thorough preparation process, our clients not only understand what to expect during the examination for discovery, but they also feel more confident and in control. This helps alleviate much of the anxiety associated with the discovery process. In our experience, clients appreciate this level of preparation, as it empowers them to present their cases effectively and with clarity.
Honesty in an examination for discovery ensures that your testimony is credible and consistent, which strengthens your case in front of the judge. Any inconsistencies or falsehoods can be used against you, potentially undermining your entire claim.
Being truthful and not exaggerating during discovery helps maintain the focus on the facts of the case, which is the primary goal of the process. It ensures that your testimony is clear and reliable, which can make a difference in the outcome.
Understanding the purpose of the questions helps you anticipate the direction the other side is taking, making you less likely to be caught off guard. It also aids in presenting a consistent narrative that aligns with the facts.
When faced with an unexpected question, take a moment before responding to ensure you understand what is being asked. It’s okay to ask for clarification or to request that the question be repeated if you need more time.
Take a break if you notice you’re becoming tired or losing concentration. This can affect the quality of your answers. A few minutes to refresh can help you stay sharp throughout the process.
If you don’t know the answer to a question, it’s better to say so rather than speculate. Guessing can lead to inconsistencies that may undermine your credibility.
Stick to answering only what is asked, as volunteering additional details can unintentionally open up new lines of questioning that may not be in your favour.
It’s essential to remain calm and respectful, even if you feel provoked by the questioning lawyer. Arguments or aggressive behaviour can negatively impact how your testimony is perceived.
Some lawyers may take longer than others during examinations for discovery. Some lawyers spend time questioning plaintiffs about issues already covered in the records, which can feel redundant. In our experience, more seasoned lawyers tend to be more efficient and take less time. Being prepared for these differences can help you manage your expectations and avoid frustration throughout the process.
As you prepare for your upcoming examination for discovery, it is natural to feel a sense of apprehension. However, it is crucial to remember that this proceeding serves as a fact-finding exercise, not a trial. Its purpose is to clarify the details of your case, not to undermine or discredit you. With meticulous preparation and the dedicated support of your legal team, you can approach this milestone with confidence and composure.
Our team is committed to providing you with the guidance and reassurance you need throughout this process. We understand that being questioned under oath can be unnerving, which is why we place great emphasis on thorough preparation and client care. By working closely with you to review your case, anticipate potential questions, and develop clear and concise responses, we aim to alleviate any anxiety you may be experiencing. Rest assured that we are here to support you every step of the way, helping you transform apprehension into assurance as you navigate this important stage of your legal journey.
If you have an Examination for Discovery Question, call us today at 905-333-8888. Alternatively, you can send a confidential email through our website to set up a consultation and learn your legal options. Our team is ready to help you understand your rights as a deponent and how you can properly prepare to do your best at discovery.
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