Examination for Discovery

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If you’ve been watching our video, “How do Civil Lawsuits Work in Ontario”, then you might have heard of the term, “Examination for Discovery”. Although that phrase sounds like a confusing legal term, the concept of Examination for Discovery is fairly straightforward.

VIDEO: How Does Examination for Discovery Work in Ontario?

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It is simply a meeting where the Plaintiff and the Defendant must answer questions under oath. If you’re not sure about the difference between a Plaintiff and a Defendant, you can go back and watch our video, “How do Civil Lawsuits Work in Ontario”. The person asking the questions at the meeting is called the “Opposing Lawyer”. In other words, if you are the Plaintiff, then the Defendant’s lawyer will be asking you questions, and if you are the Defendant, then the Plaintiff’s lawyer will be asking you questions. Examination for Discovery is typically a face-to-face meeting, and the conversation is recorded and transcribed by a professional called a “Court Reporter”. The meeting does not take place in a Courthouse. In fact, these types of meetings typically take place in conference rooms or special facilities called “Reporting Centres”. There are three main reasons why the opposing lawyer wants to ask you questions under oath.

First the opposing lawyer wants to get an idea of how you are as a witness. This will inform him or her about how you would behave in front of a jury or a judge.

Second, they want to hear your side of the story directly from you.

And third, they want you to commit to your story. Remember, Examinations for Discovery are recorded conversations, and those recordings will be used in future steps in your lawsuit. You are also swearing to tell the truth, the whole truth and nothing but the truth. That means if you change your answers during a trial, you will be appear to be an untrustworthy witness.

Sometimes, opposing lawyers will also ask you to produce additional documents or evidence which you haven’t yet given to him or her. These requests do not always happen, but if the opposing lawyer believes you are in possession of important evidence that you have not properly disclosed in your Court documents, then he or she may ask you for something called an “Undertaking”. In other words, the opposing lawyer is asking you to promise to provide additional evidence at a later date. You are not always required to make such a promise, and you can choose to consider their request and give them an answer at a later date. This type of answer in response to the other lawyer asking you for more documents is called “taking the request under advisement”.

If you are involved in a lawsuit and you are going to be answering questions in discovery, it’s important to keep some general rules in mind.

First, it’s very important to tell the truth. Any attempts to lie or exaggerate your story will most likely be caught by the opposing lawyer, or a Judge.

Second, it’s important to maintain composure. Some lawyers will attempt to get a reaction out of you, but do not let them succeed. However, some lawyers will approach you with a more relaxed attitude, so it is also important not to volunteer too much information even when you feel comfortable. It’s important to simply answer the questions that you are asked, and ensure that you answer the questions in a truthful way.

Third, it’s important to listen attentively and do not interrupt the lawyer who is asking the question. Wait for the entire question to be asked, avoid answering the question with your own question, and do not attempt to dodge the question. If you don’t know the answer to a question, you are well within your legal rights to simply say that you don’t know.

So you may be wondering what your own lawyer will be doing while you are being questioned during your Examination for Discovery. Unfortunately, the level of communication between you and your lawyer will be limited while you are being questioned, and that includes any breaks. Your lawyer is simply permitted to object to questions that may be improper, answer some particular kinds of questions on your behalf, or instruct you to refuse to answer the question. However, you cannot engage in any private conversations with your lawyer while you are being examined. Therefore, it is important to work closely with your lawyer to prepare for your Examination for Discovery in advance.