Examination for Discovery: Help & Advice for Concerned Clients.

My Lawyer told me that my Examination for Discovery is coming up and I don’t really get it. What is the process all about?

After you receive a letter from your lawyer advising you about the time and date of your upcoming discovery you will no doubt have questions.

• Why is my Lawyer telling me I will be questioned?
• How will i be questioned?
• Why am I being questioned?
• Who will be there?
• Will my lawyer prepare me?
• I am meeting my lawyer for the first time – and I have to be Questioned? (never good)
• I am nervous for my examination for discovery…what should I do?
• Is my lawyer properly preparing me for my examination for discovery
• What should I wear to my examination for discovery?

These are NOT uncommon questions.

If you find yourself involved in a civil lawsuit in Ontario, it’s important to understand the journey you’re embarking on. As you know by now, a civil lawsuit is a way to resolve disputes where you or another party seeks compensation for some harm or loss, whether as a result of personal injury, wrongful death, denied long-term disability, pediatric related injuries or employment terminations to name a few.

This process starts with filing a statement of claim – or the exchange of pleadings, as lawyers call it. Then, the process moves through several stages, each one important in its own right. After the exchange of pleadings, the next key stage is the ‘Examination for Discovery.’

Think of it as a meeting where the lawyers from each side get a chance to ask questions to the other party under oath. It’s a bit like an interview, where each side learns more about the other’s case. This step is crucial because it helps clarify the issues at hand and shapes the strategies for trial. Through this guidebook, we’ll walk you through the Examination for Discovery, breaking down what it means for your case and how you can prepare for it. Understanding this part of the process can make a big difference in how you approach your lawsuit.

Why am I being Examined at an Examination for Discovery?

Think of it this way. If you are personal injury plaintiff client who has advanced a lawsuit for damages, the only thing the insurance company and defence lawyer know of you until your discovery is what they read on paper – meaning in your economic and non-economic productions that your lawyer has provided. There comes a time in all lawsuits where each side gets to meet and question the other side (you are generally not face to face with the other witness – you are being questioned by their lawyer) in order to achieve several important purposes:

1. The Discovery of Evidence: This is a key opportunity for each party to learn about the evidence the other side may present at trial. It helps in understanding the strengths and weaknesses of each side’s case.
2. Narrowing the Issues: By uncovering facts and positions of the parties, examinations can help narrow the issues in dispute. This can lead to a more focused trial or even settlement negotiations.
3. The reservation of Testimony: The testimony given during an examination for discovery is recorded and can be used at trial. This is particularly useful if a witness’s memory fades over time or if they become unavailable for trial.
4. Assessment of Witnesses: It allows lawyers to assess how witnesses might perform under the pressure of cross-examination in a trial setting. This can be important for trial preparation.
5. Settlement Facilitation: Discoveries often lead to settlements. By understanding the other side’s case and evidentiary position, parties can make more informed decisions about settling the case before it goes to trial.
6. Avoiding Surprises: Examinations help ensure that there are no surprises at trial. Both sides have a clear understanding of what evidence and arguments will be presented.
7. Legal Strategy Development: Lawyers use discoveries to develop and refine their legal strategies based on the information gathered.
8. Obtaining Undertakings: Lawyer can ask for more productions and documents which may be relevant to the case.

In summary, examinations for discovery in Ontario lawsuits are a vital part of the legal process, helping to ensure that trials are fair, efficient, and based on a complete understanding of the facts and evidence.

Who attends my Examination for Discovery?

Your lawyer, the opposing side’s lawyer and the Court reporter are generally present.

Where will my Examination for Discovery Take Place?

Prior to COVID, examination for discoveries normally took place at reporting centers. During COVID examination for discoveries took place over ZOOM due to isolation requirements – which then became a convenient and excellent way for discoveries to take place due to the distance of the various parties involved. Post COVID, many people have realized that and accepted the convenience of discoveries by zoom, and as a result – many examination still take place over the video-conferencing platform – as well as in-person.

Will the other Lawyer try and Trick me?

No – this is not the purpose of Examination for Discovery. While personalities of lawyers all differ, the purpose of examination for discovery in Ontario is to allow parties in a legal case to obtain relevant information, assess the strengths and weaknesses of their respective positions, and facilitate the settlement or preparation for trial by questioning witnesses and examining documents.

What kinds of Questions will I be asked at my Examination for Discovery?

In a personal injury car accident case, you will typically be asked questions concerning:

• your background;
• your pre-accident clinical health;
• your pre-accident employment experience ;
• questions leading up to the accident;
• the accident;
• your accident related injuries;
• how your injuries affect your ability to work;
• your housekeeping capacity loss claim;
• your claim for future care costs, which ma cover a wide range of expenses, such as ongoing medical treatments, physiotherapy, medications, medical equipment, modifications to the home (like wheelchair ramps), and personal care assistance. It may also consider the need for future surgeries or therapies and;
• your out-of-pocket expenses.

Questions About the Accident Itself

In terms of the accident, you may be asked such questions as the type of car you were driving, whether you were the owner, the year, make and model of your car, the state of repair of the vehicle including the age and wear and tear on the tires, brakes, horn, lights, steering and windshield wiper and the mileage on the vehicle. 

You will also be asked whether the vehicle was equipped with headrests, whether they were adjustable, whether they were adjusted for your height and how far the headrest came up to the back of your head.

You might also be asked whether the car was equipped with seatbelts and if so what kind (lap or shoulder) and whether you had a seatbelt on at the time.

You may also be asked whether you had the consent of the owner to drive the vehicle, whether you had a valid Ontario Driver’s Licence at the time of the collision or whether there were any restrictions on your license (such as a requirement that you wear glasses). You may be asked if you were familiar with the vehicle you were driving, and if so, on how many occasions had you driven the vehicle, your general health at the time of the collision, the quality of your eyesight and hearing, your general physical and mental condition, whether you had consumed any alcohol or taken any drugs within a twenty-four hour period before the collision and so on.

In terms of how the accident happened – you may be asked about the facts leading up to the collision and more specifically:

• where you were coming from;
• where you were going (the lawyer will try to show that you were in a hurry to get where you were going and maybe were a little late);
• whether you had alcohol 24 hours prior;
• whether you ingested drugs 24 hours prior;
• whether you had ingested any medication which might have impaired your ability to drive;
• how long you had been on the road in question or on a specific lane on the road where the collision occurred, (the answer can be expressed in terms of both distance and time);
• what road you were on before you got onto the road in question;
• the road and traffic conditions at the time;
• the number of lanes each way;
• whether the road was straight or curved or flat or uphill or downhill and/or;
• the weather conditions and so on. 

In terms of the car accident itself, the insurance lawyer may ask questions such as:

• whether you saw the other vehicle before the collision;
• if so, the location of the other vehicle when you first saw it;
• the speed of the other vehicle, if moving, when you first saw it;
• the direction the other vehicle was heading when you first saw it ;
• an estimate of the distance that the other vehicle was away from the your vehicle at the time you saw it;
• what was your speed at impact and what was the Defendant’s speed at impact;
• did you or the Defendant take any evasive action such as attempting to hit the brakes, attempting to turn to avoid the collision or sounding the horns;
• exactly what part of your car was struck by what part of the Defendant’s car;
• how would you describe the impact – mild, moderate or severe;
• what did your body do on impact;
• did any part of your body come in contact with the car;
• could you get out of the car without assistance;
• did you give a statement to the investigating police officer;
• did you tell the police officer anything different than what you have told me today and /or
• how did you leave the collision scene?

Injuries and Losses

In personal injury cases, an examination for discovery involving a plaintiff’s injuries is a crucial step for several reasons.

Firstly, it allows the defense to thoroughly understand the extent and nature of the injuries claimed. This understanding is essential for evaluating the validity and potential value of the plaintiff’s claim in terms of compensation.

Secondly, the examination often uncovers additional details or evidence that may not be apparent in medical reports or initial statements. It serves as a means to probe the consistency and credibility of the plaintiff’s account of their injuries and how these injuries impact their life.

Finally, the information gathered during this examination can be vital for both sides in formulating their strategies for negotiation or trial. It can lead to a more informed settlement discussion or, if the case proceeds to trial, provide essential insights for the presentation of evidence and arguments.

What type of Questions will I be asked in terms of my Injuries?

The defence will likely ask you to list your injuries from head to toe. Then, comprehensive questions will be asked in terms of each injury in order to determine whether your complaints are consistent with your medical records and what you have been telling medical and rehab providers.

You will be asked about ongoing symptoms, the duration and intensity of symptoms, whether your symptoms are brought on by factors such as activity, weather, positioning, standing, sitting or are they brought on randomly – for example.

When answering questions, we always emphasize that clients must be accurate and truthful. Clients should never exaggerate in any way or tell any untruths.  Defence lawyers and judges hear hundreds of these cases every year and can tell after a few minutes of testimony whether a client is attempting to exaggerate or is saying something that is untrue.

You may also be asked about injuries not related to the car accident. Remember the Defendant’s lawyer has obtained your decoded OHIP claims summary that includes all of your doctor visits in the three years prior to the accident.  This includes everything from the common cold to stubbing your toe.  If you had a runny nose 3 years ago, the other lawyer will know about it.

Questions in Terms of Housekeeping Capacity Losses

With respect to household activities, it is not uncommon for the injured person to have difficulty doing heavier types of chores such as vacuuming, laundry, cutting the law, shoveling snow and taking out the garbage. 

In most cases the injured person can do the chores under circumstances of pain and discomfort and fatigue with the end result being that the person does some of the chores and gets some help from family members in doing others.  

Further, instead of being able to do the vacuuming in one shot, in one hour, the person now might have to break the vacuuming up into three different time frames and do the vacuuming in periods of twenty minutes over three days.

Questions in Terms of Employment and Income Losses

In a personal injury case, when examining a plaintiff’s employment income and economic losses, a defence lawyer will typically ask a range of questions to understand the financial impact that injuries have had on the person. These questions may include:

1. Details of your Current and Past Employment: The lawyer will typically ask about you current or past job role, responsibilities, and the nature of your work. They will also inquire about previous employment to establish a pattern of work history and earnings.
2. Your Income Information: Questions will be directed to ascertain your income levels before and after the injury. This includes wages, bonuses, overtime, and any other forms of compensation.
3. Changes in Employment Due to Injury: The defence lawyer will explore how the injury has affected your ability to work. This includes questions about missed work days, reduced hours, limitations in performing certain job functions, or any job loss related to the injury.
4. Career Trajectory Impact: Inquiries will be made about how the injury might have impacted your career progression, such as missed promotions, inability to take certain jobs, or required career changes.
5. Benefits and Perks: Questions about loss of job benefits like health insurance, retirement contributions, or other perks which may have been affected due to reduced work hours or loss of employment.
6. Additional Economic Losses: The lawyer will probe into other economic losses related to the injury, such as medical expenses, costs for rehabilitation or therapy, and any required modifications to the home or vehicles.
7. Future Earnings Capacity: There will also be discussions about the injury’s long-term impact on the your capacity to earn in the future, including potential ongoing treatments or disabilities that could affect your earning ability.

These questions aim to comprehensively understand the economic toll of the injury on the plaintiff, which is crucial for calculating a fair compensation amount.

You will be asked about Witnesses

Under our Rules of Civil Procedure, you are obligated to give the names and addresses of those persons who might reasonably be expected to have knowledge of the occurrences and transactions in issue in the law suit. We encourage our clients to bring to the office the names, addresses and telephone numbers of possible witnesses to their preparation for dicovery meeting – including witnesse home and business addresses including postal codes and the home and business telephone numbers.

Remember – it is a Process in all Personal Injury Cases

We always remind our clients that the examination for discovery is a process in all personal injury cases. No matter if you are 9 or 90, you will need to most likely attend discoveries and give evidence on the accident as well as you economic and non-economic losses. We recommend that our clietns be consistent wth medical documentation, mention everything about their pre-accident health no matter how insignificant and most important of all – always be truthful – no matter what. If you are not, and the matter proceeds to trial and your evidence is not consistent with the medical documentation, the other lawyer will have absolute irrefutable evidence given under oath that you might attempting to exaggerate your symptoms for monetary gain.  The other lawyer will try to show that because your evidence was inconsistent with what you told doctors – there is no reason why you can be believed on any point.  This will have a very harmful effect on any settlement discussion and the lawsuit overall.

If you have any questions about your examination for discovery, call us today. Feel free to schedule a free consultation with our Hamilton Personal Injury Lawyers in order learn more about how we can help recover your economic losses and obtain the compensation you deserve. We are located in downtown Hamilton and have served the community for over two decades. Call us today, no matter where you are in Ontario at  1-844-LALANDE or local in the Southern Ontario region at 905-333-8888. Alternatively, you can send us a confidential email through our website – and we would be happy to explain your legal options to you, at no cost.