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What is an examination for discovery?

Prepared by Ken Armstrong KC

· General topics

An examination for discovery is a crucial step in any type of litigation. It is a formal verbal interview by the opposing party’s lawyer done in a boardroom or zoom meeting, with a transcript. It is a “closed” meeting – the only people allowed are the parties, their lawyers, and the court reporter. There is no judge present. The witness promises to tell the truth. It is each party’s opportunity to learn the other side’s version of the events, to try to get the other party to make admissions which can be used at trial, and to determine how a witness may present at trial, should the matter proceed to trial.

You may have heard the expression a lawyer should never ask a question they don’t know the answer to – an examination for discovery is the opportunity for the lawyer to find out the answers to their questions! They are often quite expansive: in motor vehicle accident cases, it can take 30 minutes to an hour, and sometimes longer, to conduct a thorough examination for discovery of the party who allegedly caused the collision. On the one hand, the lawyer conducting the discovery wants to know the whole story so they can assess the downside to their case; on the other hand, the lawyer wants to confirm you’ll say what they think you’ll say if it ever gets to trial. And sometimes we’re just curious! So you will be asked some questions that seem both obvious and trivial. In a motor vehicle accident case, you will always get asked questions about where you had been before the accident, whether you were drinking alcohol that day (or using recreational drugs), whether you were wearing glasses at the time of the accident and whether you should have been, whether you were on your cell phone at the time of the accident, etc. etc.

Evidence given at examination for discovery is considered “sworn” evidence and is on the record. Anything you say can and will be used against you in a court of law (should the case get that far)! The court reporter prepares a transcript of the examination which will be printed for trial and if your evidence at trial is different than your evidence at discovery, you will be confronted with your discovery evidence and be expected to explain the discrepancy. It’s important to be well prepared for a discovery and not to guess if you don’t know!

Further, the lawyer conducting the discovery will be judging how your present yourself. Did you appear truthful? Were you argumentative? Will the judge or jury like your or dislike you? It’s important to put your best foot forward at an examination for discovery.

If you have to go to an examination for discovery it’s very important to have a lawyer with you and to meet the lawyer prior to the discovery to go through the procedure in more detail and to get advice about the process.

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