What are Discoveries in Personal Injury Law
Examination for Discovery, or what we refer to as “discoveries”, are a critical part of the claims process in Ontario and much of the developed world. This process, often times glorified in the movies or on television shows, takes place in a boardroom with a court reporter, and is an opportunity for each party of the law suit to find out more about the other party’s claim or defence and gather facts and evidence relevant to the proceedings.
What To Expect
The discovery process is a procedural step, as prescribed in the Rules of Civil Procedure, where one party (at a time) through their lawyer, ask questions to the other party about relevant facts and issues of the case. Discoveries generally occur towards the beginning of the litigation process, and once a formal claim has been filed with the Superior Court of Justice. For claims in other levels of court such as Small Claims Court, this article does not address. Individuals that are giving evidence must swear an oath, and all the questions and answers are transcribed by a court reporter.
Leading up to discovery, it is important that both you and your lawyer have a thorough understanding of your case. This means understanding both the mechanics of the accident, but also your health and medical records, from beginning up to the present time. The opposing side will have reviewed your medical records in detail, and will do whatever they can to cast doubt on your injuries having been a result of the accident. Every case is different, but one thing that is consistent is the other side will likely know more about you than you think.
The lawyer asking questions will likely ask a variety of questions. In personal injury claims the opposing side will certainly have questions about the extent of your injuries and how they have affected your activities of daily living. They will also seek admissions on pre-existing injuries. They will be interested in your employment, past, present, and plans for the future, among a number of other topics. Some of their questions may seem redundant and pointless. Your lawyer representing you has a duty to ensure that all of the questions being asked of you are relevant and appropriate, and they should object to any improper questions.
Tips For Discoveries
Since we are not retained counsel, this is not legal advice, and if you are injured in an accident of some kind, you should consult with a personal injury lawyer before participating in the discovery process. Below are some tips to be mindful of during the discovery process.
- Always tell the truth and be honest.
- Do not exaggerate, but don’t undermine your injuries.
- Be polite and courteous. The other side is sizing you up to see if you will be a “likeable” witness in front of a jury.
- Do not guess. If you do not know the answer, than that is your response: “I don’t know the answer”.
- Have your lawyer prepare you for discoveries and refresh your memory. Lawsuits generally take several years, so it is normal to require a meeting to go over the accident and your injuries.
- Do not answer the question until it is finished being asked. Because the proceedings are transcribed by a court reporter, it is important that one person talk at a time.
- Stick to answering the question in a concise manner. There is no need to tell the opposing side anything more than what is being asked.
Most discoveries take place over one day, while some will take shorter or longer. At the Bernstein Law Group we represent injured victims and assist them through the discovery process. If you have been injured in an accident, our law firm is happy to provide you with a free consultation and give you our knowledgeable legal advice. At our office we will ensure you are fully informed of your rights and the likelihood of success with your claim.