Examination for Discovery: What a Witness Needs to Know

Practice and preparation before the examination for discovery is vital for a witness. Examination for discovery gives oppoising counsel a chance to hear from you directly. They will determine your strength as a witness and they will consider the merits of your story.

What is Examination for Discovery?

It is simply sworn testimony (questions and answers) given before a court reporter, usually at a court reporter's office. The facility is generally like a conference room. Usually, all of the lawyers involved in the case are present. At the end of the examination, a transcript is often prepared. The transcript is a verbatim version of what was said at the examination.

Why Have Examination for Discovery?

There are three main reasons why the opposing lawyer wants to examine you. First, as mentioned above, the lawyer and his or her client want to size you up as a witness. How will the jury like you?

Second, they want to hear your version of the facts, straight from your mouth.

Third, they want you to commit to your story. Because you are giving sworn evidence, if you try to change your answers at trial, you will be cross-examined against what you said at examination for discovery. This is called being "impeached". It does not help your credibility if you seem to be changing your story.

How Can You Succeed at Examination for Discovery?

(1) Tell the truth. The lawyers and investigators you are dealing with are very smart and very experienced. You are not likely to be able to pull the wool over the other lawyers' eyes. In a personal injury case, that means you must admit to past injuries or medical incidents or conditions and you must not overstate your injuries.

(2) Stay focused. Some lawyers are aggressive. You will have no doubt that this is a formal legal proceeding. Other lawyers, however, are warm and friendly. Do not be fooled into thinking this is a casual conversation. You are there to answer the specific questions asked and nothing more. When there is a break, you must not discuss anything personal in front of the other lawyers. No exceptions. Nothing said at discovery is "off the record".

(3) Listen to the questions. Do not answer a question you don't understand. Do not start answering the question part way through. Don't answer more than the question asks. If you listen to the question, these rules are pretty easy.

What Do You Do if You Don't Know the Answer to A Question?

You answer: "I don't know". It is perfectly acceptable to tell the examiner that you don't know the answer to the question. Discovery is not a memory test. And most importantly, you must not guess at any answer. Sometimes it is acceptable to approximate. For example, this is acceptable if you are estimating a car's speed or a distance. Just be sure to clarify that it is an estimate.

What Does Your Lawyer Do While You Are Being Examined?

Your own lawyer ensures that you are fairly treated during the discovery. They will advance objections to improper questions, for example. If your lawyer does not object, you should answer the question. Unfortunately, in a personal injury case there are subject matters you will be asked about that can be pretty personal. Even your sex life can be a reasonable topic in many cases. Be confident that your lawyer is making all legitimate objections.

You cannot have a private discussion with your lawyer during your examination for discovery. It is simply not allowed.

The main thing your lawyer is doing during your examination is planning what else needs to be done on the case. Often the discovery will highlight areas that need fleshing out. Your lawyer will be making a list of these areas and planning the next steps.

I hope this information has given you an overview of what to expect during your examination for discovery.

Brenda Hollingsworth and Richard Auger are lawyers representing accident victims in Ontario, Canada. Their law firm is Auger Hollingsworth, located in Ottawa. They are the authors of "An Injured Victim's Guide to Fair Compensation". To get free copy of this book, contact www.personalinjuryottawa.ca ; email info@personalinjuryottawa.ca or call 613.233.4529.

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