Many plaintiffs worry about their Examination for Discovery, which is a critical step in the legal process when you are questioned by the opposing lawyer. It is almost always the first time that the opposing party’s lawyer gets to hear from you directly. Not only will the lawyer form an impression of the strength of your case based on the facts you describe, but she will also be assessing how strong you are as a witness, which is important in trying to predict what might happen at a trial.
We answer some common questions about this process below.
Why have an Examination for Discovery?
There are three main reasons why the opposing lawyer wants to examine you:
- The lawyer and their client want to evaluate you as a witness;
- They want to hear your version of the facts, straight from your mouth;
- They want you to commit to your story under oath so that if you change your story later on, including at trial, they will have a transcript with which to attack your credibility.
Must I tell the truth or should I only give answers that will help my case?
The lawyers and insurance adjusters you are dealing with are smart and experienced. In a personal injury case, you must admit to past injuries and pre-existing conditions and you must not exaggerate your injuries. You also have to be honest about loss of income. If you are caught lying or even exaggerating, it could have a very serious and negative impact on your case.
Will the lawyer be mean to me?
No. while some lawyers might seem aggressive to someone who is not used to being involved in the court system, other lawyers are warm and friendly. Do not be fooled into thinking this is a casual conversation just because a lawyer seems friendly. Answer the questions asked and offer nothing more. Even on breaks, do not talk about anything personal in the presence of opposing counsel. You must always assume that nothing said at an Examination for Discovery is off the record.
Is this my chance to tell my story?
No, that is not the point of an examination for discovery. Your job is simply to answer the questions that are put to you. The time to tell your full story the way you want to tell it will come later. At an examination for discovery, do not answer a question you don’t understand and, as importantly, do not answer more than the question asks.
What do I do if I don’t know the answer to a question?
Simply answer, “I don’t know.” It is perfectly acceptable to tell the examiner that you don’t know the answer to the question. It is important to not guess at any answer. Sometimes it is acceptable to approximate. For example, this is acceptable if you are estimating a car’s speed or a distance. Just be sure to clarify that it is an estimate.
What does my lawyer do while I’m being examined?
Your lawyer ensures that you are treated fairly during the discovery. For example, we will make objections to questions that are improper, although in personal injury cases these objections are sometimes rare. If your lawyer does not object, you should answer the question. Unfortunately, in a personal injury case, there are subject matters you will be asked about that can be personal, like your sex life, if you claim that it has been affected by your injuries. Be confident that your lawyer is making all legitimate objections. You cannot have a secret or private discussion with your own lawyer during your Examination for Discovery. If you have concerns about something that may be asked of you, discuss these with your lawyer before the examination.
The main thing your lawyer is doing during your examination is planning what else needs to be done on the case. Often the discovery will highlight areas that need fleshing out. Your lawyer will be making a list of these areas and planning the next steps.
Our team has helped thousands of clients prepare for successful examinations. A little practice and knowledge will go a long way toward success at the examination. If you’re worried ahead of an examination for discovery, speak to your lawyer about your concerns.
