What is an Examination for Discovery?
If you have suffered a personal injury through a fall, car crash or otherwise due to the negligence of someone else, you can hire a personal injury lawyer to recover money. In Ontario, your lawyer will begin an action using a ‘Statement of Claim’. Once the person you are suing has retained a lawyer, one of the first things they will want to do is learn about your claim. The most common forum for learning about your claim is called examination for discovery.
The parties and their lawyers will arrange a time to meet for the examination. Before the pandemic this would be done in a boardroom, however it is more common now to conduct examinations virtually. Either way, a court reporter will be in attendance who writes down everything that is said. They will ask the witness to swear or affirm to tell the truth and the lawyer for the person you sued can ask you relevant questions.
Depending on the amount of money you have sued for, an examination for discovery can have different lengths. If you have claimed $200,000 or less under the ‘Simplified Procedure’, then it will last three hours or less. If you have claimed more than $200,000 under ‘Ordinary Procedure’, it can take up to seven hours. Your lawyer will attend and represent you throughout the examination. Your lawyer can answer legal questions and keep the questions on relevant topics.
In terms of topics, the lawyer can ask anything that is a relevant question. Generally speaking, if it is mentioned in the Statement of Claim, it is relevant. That includes how the injury happened, who was there, what treatment has happened since, and how the injuries are today. If you missed time off work and are claiming money for that, as well as questions about your job, work history and how much money you make will all be relevant. If you are claiming money for housekeeping, then questions about where you live and who has done chores and when will be relevant.
Every lawyer has their own style and can approach the questioning differently. Some defence lawyers ask few questions to ‘get a feel’ for how you answer them. Others work with a checklist and seem to be trying to ask every question three different ways. I once attended a discovery where the lawyer asked if it was raining. My client said yes. The lawyer then asked if the road was wet.
Examination for discovery is one of the most important parts of a personal injury case. It allows the parties to meet and preview the evidence for trial.