You Can Handle the Truth! The Examination for Discovery: How do you prepare?
Many of my clients get anxious when they have to do their examination for discovery and it is understandable why they would – during the discovery they will be asked questions by a lawyer, an unknown experience for most people. We all tend to be nervous for the unknown. And, of course, there is the steady stream of exactly what a discovery is not like, that people watch in TV shows and movies. As exciting as it is to watch Harvey Specter complete a deposition (the American term for an examination for discovery) in about 5 minutes, after presenting the smoking gun document, and cursing and screaming at opposing counsel, it doesn’t accurately reflect reality.
The examination for discovery is a process where the defendant, through their lawyer, has an opportunity to hear what the plaintiff’s evidence will be, if the litigation proceeds to trial (and they most often do not). The defendant goes through the same process with the plaintiff’s lawyer asking them questions. Before the discovery, the defendant’s lawyer will have been provided with all of the plaintiff’s medical records, employment files, income tax returns – all relevant documents to the case will have been delivered to the lawyer. This means that counsel will already have an idea of what injuries the plaintiff suffered, the treatment they have received, and the impact those injuries have had on their work and daily life.
According to the Rules of Civil Procedure, counsel is able to ask any proper question relevant to any matter in issue in the action. The scope of relevant questions is therefore quite broad. Plaintiff’s counsel will also be in attendance, so if there is an improper question, they can refuse to have their client answer it.
Below are five tips that I provide to clients to help them be prepared for their examinations for discovery:
- Listen to the question, and make sure you understand what you have been asked before you answer it. If you aren’t sure what you are being asked, then ask for clarification.
- If you don’t know the answer to a question, don’t guess. “I don’t know” is the right answer in this situation.
- Just answer the question that you have been asked. Avoid going off on tangents, as it can lead to doors that never would have been opened by counsel, if you had stuck to answering the question asked.
- Be comfortable with silent pauses. You don’t need to fill them with words. Just wait for counsel to ask their next question.
- Ask for a break if you need it. If you are feeling anxious, are in pain, or just need a breather, you will benefit from having a break rather than trying to push through.
Getting over your fear of the unknown is hard, no matter how many useful tips from a plaintiff lawyer you read. You will have a chance to have any questions and concerns answered when you meet with your lawyer to prepare for the discovery. Following your meeting with your lawyer, you should have a good understanding of the discovery process, and feel prepared for it.
At the end of the day there is really only one thing to remember for your examination for discovery: tell the truth. Jack Nicholson only got yelled at when he didn’t!