One of the most common questions clients ask is “What will discoveries actually be like?”.

If you’ve never been involved in a lawsuit before, the idea of answering questions under oath can sound intimidating. Fortunately, once you understand the process, most people find discoveries are far less stressful than they imagined.

Here is what you can expect.

The Three Stages of a Lawsuit

A lawsuit can be divided into three stages:

1. Pleadings
2. Discovery
3. Trial

The discovery stage has two parts:

• Documentary Discovery (exchange of relevant documents)
• Examination for Discovery (questioning under oath)

Technically, examination for discovery can happen in writing.

However, in an Ontario personal injury case, your examination for discovery almost always takes place orally with you, your lawyer, the defence lawyers and a court reporter present. The meeting may be help in person or virtually.

“Oral examination for discover” is quite a mouthful, so lawyers almost always shorted it to simply “discovery” or “discoveries”.

When you hear a lawyer say “discoveries”, they are almost certainly talking about the meeting where the parties answer questions under oath.

What Are Discoveries?

Simply put, discoveries are an interview conducted under oath where the defence lawyer asks you questions about your:

• Accident
• Injuries
• Medical treatment
• Losses
• Other issues relevant to your claim

You won’t be facing this process on your own.

Your personal injury lawyer will attend the examination with you and can object to inappropriate or irrelevant questions.

Your lawyer will also have an opportunity to examine the defendant under oath.

The Day of Discovery: What to Expect

Every case is different, so the best source of information is always your own lawyer. That said, most discoveries follow a similar set of steps.

1. Discoveries typically begin in the morning

In Ontario, most discoveries begin around 10:00am, although this exact time can vary

2. The Defendant is often examined first

As a matter of practicality, your lawyer will typically examine the defendant first as their discovery will (usually) be much shorter.

There are frequent exceptions, however.  Generally the order of parties is agreed on by the lawyers in advance based on what’s practical.

There are also rules that govern what happens if the lawyers can’t agree on the order.

3. You Usually Won’t Attend the Defendant’s Discover

Although you have the right to be present during the Defendant’s examination, plaintiffs typically do not attend, just as defendants usually do not attend the plaintiff’s examination.

4. Attendance is Limited

Typically, no one other than:

• the lawyers
• parties
• court reporter

is allowed to be present during the examination for discovery.

5. You Will Swear to Tell the Truth

Before questioning begins, you will either swear an oath or affirm that you will tell the truth.

There are all kinds of ways to swear to tell the truth.  Section 16 of Ontario’s Evidence Act says that an oath “may be administered to a person while such person holds in his or her hand a copy of the Old or New Testament without requiring him or her to kiss the same” or by some other manner that is binding upon the person’s conscience.

Today, most people simply “affirm” to tell the truth which requires no religious texts or objects.

It makes no difference to your case whether you affirm or swear to tell the truth.

6. Expect to spend most of the day there

A plaintiff’s discovery normally lasts between 2 – 7 hours depending on:

• The facts of your case
• The number of issues involved
• The style of the examining lawyer

Unless your lawyer tells you otherwise, you should plan for the discoveries taking all day.

7. You can take breaks

You can take a break from the questioning at any time.  Plus, there will be a longer break for lunch.

8. You cannot discuss your evidence during breaks

While your discovery is underway, you cannot discuss your evidence with your lawyer, even during breaks.

Common Questions Plaintiffs Are Asked During Discovery

During discovery, the defence lawyer may ask questions about:

• How the accident occurred
• Your medical history before the incident
• The injuries you sustained
• Your medical treatment and recovery
• Your employment history and income
• How your injuries affect daily activities and quality of life

The goal of the discovery is to allow both parties to better understand the evidence, evaluate the claim, and assess the credibility of the witnesses.

Preparing for discovery

The best way to prepare is to meet with your lawyer beforehand and discuss what to expect.

Speak With an Ottawa Personal Injury Lawyer About Your Case

If you have questions about the discovery phase of your personal injury claim, we are here to help.