Insight

What Are Examinations for Discovery

This article explores the importance of an examination for discovery in civil lawsuits.

Illuminated lightbulb in a maze
SG

Salvatore Grillo

September 14, 2022 09:00 AM

An examination for discovery is a crucial and common component of almost every civil lawsuit. In and of itself, an examination for discovery is not a trial but a pre-trial process. During this process, the lawyers for each of the parties question the other party under oath regarding the issues that will be raised in the lawsuit. A court reporter takes down the questions and the answers and may later produce them as a written transcript if necessary.

Examination for discovery is one of the Rules of Civil Procedure that helps each party to understand the other party's allegations in the case. The reasoning behind an examination for discovery is that when each party understands the other party's case, it will promote settlement and hopefully prevent an expensive trial time.

The Purpose of Examinations for Discovery

The main purpose of examinations for discovery is to equip all the parties involved with the necessary information to enable them to move towards a settlement. During this process, the opposing lawyers question the plaintiff, the party that is suing, and the defendant, the party being sued. Lawyers conduct discoveries orally. However, in rare cases, discovery may consist of a written exchange of questions and answers. Typically, discoveries are not videotaped but audiotaped. The lawyer doing the examination will seek to achieve the following:

  • Find out what the other side has to say regarding the issues outlined in the lawsuit
  • Determine whether the parties involved have any areas of agreement
  • Try to obtain an admission from the other party, which the lawyer can later use against the party during trial

The lawyer conducting the discovery can ask a wide range of questions, provided they are related to the issues in the lawsuit. The party being examined/questioned will have their lawyer present to ensure that all the questions being posed are proper. If their lawyer feels that the other lawyer is asking improper questions, he or she will object.

Where Are Examinations for Discovery Held?

An examination for discovery is held in a private office, known as the "Examiner's Office," rather than in the courtroom. If you are being questioned, you have to swear an oath to only tell the truth. If you give answers that are later found to be fake, you could be criminally prosecuted. Only the parties, their lawyers, and the court reporter are present during the examination - because this is not a trial or even part of a trial, no judge is present. Members of the public are also not allowed into the examiner's offices.

The general rule is that a party can be present when the other party is being questioned. However, most parties do not exercise this legal right. In some cases, the other party may wish to be present in the examination room of the other party, but they are not granted this wish. Whether the other party is present during questioning will vary from one case to the other.

The Time Limits

Usually, discoveries do not exceed seven hours. However, the permitted period is limited to two hours if a case falls under a simplified procedure. Discoveries are not held for Small Claims Court cases.

Discoveries mainly occur between 10:00 a.m. and 1:00 p.m. and between 2:00 p.m. and 4:30 p.m. However, this will depend on the specific requirements of a case.

Preparing for Discovery

If you are to be examined for discovery, you should keep in mind that the other party will use your answers against you. Therefore, you should keep your emotions in check and confine your answers to the questions asked by the other side. Do not give more information than is needed. As mentioned on the Grillo Law website, you should prepare adequately for the questioning.

Your lawyer will spend time with you to help you prepare adequately for the questioning. If you are to appear for questioning as a representative of a company, you should equip yourself with all the crucial facts about the company. If you are appearing on your own behalf, you should ensure that you understand all the notes and documents that pertain to your case. If the questioning lawyer asks about something that you have forgotten or you don’t know, you can have your lawyer find the answer later and submit it via letter. You should take time to prepare for the questioning; however, do not panic or fear that you will forget something because this is not a test of your memory.

During the discovery, you may not be able to answer some of the questions asked. The other side may also request documents that you don't have, and you need to find them first. In this case, you and your lawyer will give an undertaking, promising to provide documents or information at a later date. If you give an undertaking that you don't fulfill, the other party may file a motion requesting the court to instruct you to provide the documents and information requested. If you fail to provide certain evidence or information at the discovery, you will not be allowed to use this evidence during the trial.

The Outcome of Discovery

Most lawsuits are settled after discovery, meaning that they won't proceed to court. However, you and your lawyer must prepare fully to ensure that your interests are safeguarded even if your case proceeds to trial. Even if you don’t reach a settlement, discovery equips you with evidence to use during a trial.

Find A Personal Injury Lawyer

It is important to engage a lawyer who is experienced in personal injury law to help you prepare for discovery. Before you hire one, do not hesitate to ask whether the lawyer has handled discoveries before. You will require sound advice to navigate the process. Working with a reliable personal injury lawyer will give the best outcome for the discovery and trial.

For more than 30 years, Salvatore Grillo has been recognized for helping shape personal injury litigation in the Greater Toronto Area. He founded one of Toronto’s top personal injury firms, Grillo Law, in 1985 and has been establishing his reputation for success ever since. The peace of mind and satisfaction Grillo is able to provide to his clients is the fire that continues to fuel his ambition in the field.

Headline Image: iStock/libre de droit

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