Examination for Discovery

• An Examination for Discovery will likely be the first formal event in a personal injury lawsuit for the injured person.
• Discovery is a mandatory step under Rule 32 of the Rules of Procedure of New Brunswick.
• Your Fidelis Law Accident and Injury Lawyer will be at your side the whole time.
• Questions may relate to any relevant aspect of your life before and after the accident.

What is an examination for discovery?

An Examination for Discovery (“Discovery”) is an important procedural step in a personal injury litigation. The Discovery itself is an opportunity to explain your story.  You will meet with your lawyer, the defense lawyer, and a court stenographer to answer questions related to your accident, your injuries, your employment, and your life in general. It is a pre-trial procedure at which lawyers for each party has an opportunity to question the opposing party to gain a better insight on their case. Evidence is provided under oath and is recorded. The exchange of information promotes settlement by allowing parties to gain better understanding of the strengths and weaknesses of their case and that of their opponent.

Why is Discovery necessary?

The basic principle behind this stage in your lawsuit is that giving all relevant information to the other side will help the matter come to a quicker and more just conclusion.  Surprise evidence does not come along very often in a personal injury lawsuit; each party hands over all the information they have to the other. Trial by ambush and Perry Mason moments are mostly a thing of the past.

What information does the other lawyer have about me?

Before the Discovery, your lawyer will submit all of the documents they have gathered with respect to your accident, your employment, and your health.  You will be asked to sign an Affidavit of Documents stating that the documents listed in it are all the relevant documents you know to exist.  People are often surprised to find out that this includes medical records from before the accident.  While the fact that you had an ear infection five years ago may seem irrelevant, in fact, all of your previous medical records help to show the impact that the injuries you sustained in the accident have had on your health and wellbeing.

What kinds of questions will I be asked at Discovery?

You will be asked questions about various aspects of your life before the accident, the details of the accident, and how your injuries have affected your life. The questions could cover some of the following areas:

• Home and family situation
• Pre-existing medical conditions
• How the accident happened
• Your past and present education and employment
• Housework or outside work responsibilities before and after the accident
• A detailed description of your injuries
• Treatments you have undergone
• A description of your typical day
• Your hobbies before and after the accident

The rule for the type of questions allowed is that if it has a “semblance of relevance” to the accident, it is an acceptable question.  Your Fidelis Accident and Injury Lawyer will ensure that the opposing lawyer only asks relevant questions.

What do I answer or say at a Discovery?

Your role at a Discovery is to tell the truth.  You may make an oath on the Bible or solemnly affirm[1] that you will tell the whole truth before beginning your testimony.  Remember: the defense lawyer already has many documents so there is no hiding the truth.

Many of the questions will be very specific and the answers may be difficult to recall.  If you genuinely do not remember the answer, do not make up an answer or guess, simply say that you do not remember.

A Discovery normally takes one day but could be more or less depending on the complexity of your case.  You will take breaks for lunch or when required if your injuries bother you.  Unlike on television, the defense lawyer will not grill you relentlessly, but their questions could be abrupt or pointed.  Again, honesty will serve you well and a Fidelis Accident and Injury Lawyer will be there to protect your interests.

Why is the other lawyer asking for extra documents?

Either during or at the end of the Discovery, the opposing lawyer will request certain documents or information that they have found to be of interest over the course of the Discovery.  This might include information from your Facebook account, treatment providers, employers, or even documents you think are personal.  It is all part of the disclosure of information.  Your lawyer will spend the next several months obtaining the requested information and forwarding it to the defense lawyer. If any information is requested from you specifically, make sure to provide it to your lawyer as soon as possible so as not to delay the progress of your case.

All of the documents and your testimony at the Discovery serve as evidence in your case.  It is no secret that the defense lawyer will attempt to use this information to diminish your claim, but your own lawyer is skilled at building your case.  You might not sleep the night before, but once the Discovery is over, you will probably find that it was not as bad as you expected.

Your Fidelis Law Accident and Injury Lawyer will prepare and guide you through the Discovery process to make it as painless as possible.

[1] Evidence Act, RSNB, 1973, c E-11, sec 12, 13, 14