The Do's and Do Not's for Examinations for Discovery
An examination for discovery is a critical part of any personal injury or civil litigation case in British Columbia's Supreme Court. Generally, in a civil or personal injury case, each side has an opportunity to examine the opposing party. If the opposing party is a corporation, partnership, or other non-human entity, that party’s representative will be examined on their behalf. Examinations take place in a boardroom at the offices of specialized reporting companies that provide the space for the examination and a trained court reporter who produces a written transcript of everything said during the examination.
Examinations for discovery are very important because they allow each side to ask questions, gather information, and pin down the story of the other side. You can explore contradictions in the other side’s version of the facts. You can also find out about any records, correspondence, or other documents in the possession of the other side, and request that they disclose these documents if they are relevant. You will likely have a better idea of the strength and weaknesses of your case after both sides have conducted examinations for discovery. This helps you prepare for trial, and can even help the parties reach a settlement because they are better able to predict the outcome of the trial and more likely to compromise if they can foresee a low likelihood of success at trial.
What happens at an examination for Discovery?
Many people are understandably nervous about attending an examination for discovery, and it helps to know what to expect. The examinations take place in a boardroom around a big table. The court reporter usually sits at the head of the table between the two sides, and takes notes and marks exhibits throughout the examination. The party who is being examined will sit across from the opposing party’s lawyer who is examining them. Anyone who is a party to the litigation is permitted to attend the examinations, and usually, the party whose lawyer is conducting the examination will be there, sitting next to their lawyer. This is helpful because that party can take notes while their lawyer is conducting the examination, and can even discuss the examination with their lawyer during a break if they think of other questions that need to be asked or contradictions that should be explored.
If you are being examined and have a lawyer, your lawyer will attend with you to represent you and object to any questions that are irrelevant, or otherwise improper. While you are under examination, you cannot discuss the case with your lawyer, even during the lunch break.
The lawyer examining you will ask you questions about the events and facts that form the subject matter of the case. The examining lawyer may also ask you to look at specific documents and ask you questions about the documents. Generally, the questions are specific and leading questions, but you are not limited to a yes or no answer. You can give complete answers, although you should try to avoid rambling. The questions asked of you are designed to elicit specific information or admissions. The opposing lawyer may ask you to agree with them about how specific events happened. The lawyer examining you is representing the opposing party and is undoubtedly trying to undermine your case, but even with this adversarial situation, examinations are usually polite. On some occasions examinations become tense, but if you have a lawyer representing you at the examination you can rest assured that they will interject if things become inappropriate or the other side is being too aggressive – which is rare.
The length of an examination varies depending upon the complexity of the case. More complex cases take more time, and generally examinations last between 1 hour up to an entire day. There is usually a lengthy lunch break of at least one hour, because examinations are often taxing for everyone involved. The Supreme Court Civil Rules limit the length of examinations. In fast track actions they are limited to 2 hours and in regular Supreme Court Actions discoveries are limited to seven hours. The exception to the time limits is that a party can be examined for longer if they consent or unless the court extends the time limit by a court order.
Dos and Don’ts of Examinations
If you are the party being examined for discovery, your lawyer will meet with you before the examination to help you prepare and understand what will be expected of you. It is important that you are well prepared because once you are sworn under oath you will not be able to discuss your case or your testimony with your lawyer. Your lawyer’s advice and preparation for the discovery will vary depending on the nature of your case, but your lawyer’s advice will probably include:
- Always tell the truth – You are under oath and have the same liability for perjury as if you were in court in front of a judge. You should take your obligation, to tell the truth extremely seriously.
- Dress well, sit up straight, and look the examiner in the eye – the opposing lawyer is not just interested in your answers, but also in how you answer. You want to present yourself as a strong witness who will be calm and credible in court before a judge or jury.
- Listen to the entire question and understand it before you answer -If you don’t understand the question, you shouldn’t answer until you do. You can ask for clarification.
- Don’t interrupt – the court reporter will be taking a transcript of the examination, and it is important that the transcript is clear and easy to read, without people talking over one another.
- Be polite in your answers, don’t raise your voice or become angry with the examining lawyer – you want to make it clear that you will not be goaded or become angry to the advantage of the other side.
- If your lawyer makes an objection or interjects, stop talking immediately -wait until the lawyers have dealt with the objection and you are either allowed to continue or advised
Being examined for discovery in a personal injury or civil case is undoubtedly an intimidating experience, but with strong representation and good preparation, you have the opportunity to gather important information about the other side’s case, and to show them what a confident witness you will be at trial. Examinations for discovery are a vital fact-finding tool in almost every personal injury or civil case, and one which may help you win at trial or achieve a fair settlement.
Cadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high-performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.
Since joining Velletta & Company, Cadeyrn Christie has helped clients achieve cost-effective legal solutions in a wide variety of contentious matters, including business disputes, debt collections, personal injury litigation, real estate disputes, and construction litigation. Cadeyrn has represented clients at all levels of court in British Columbia, including conducting an appeal in the British Columbia Court of Appeal.