What are examinations for discovery?

An examination for discovery is an important part of almost every civil lawsuit. It is not a trial but rather a pre-trial process at which lawyers for each of the parties questions other parties or their employees, under oath, about the matters involved in the lawsuit. The questions and answers are taken down by a reporter and later, if necessary, can be produced as a written transcript. Examination for discovery is one of procedures established by the rules of court (known as “Rules of Civil Procedure”) for helping each party find out about the other side’s case in the lawsuit. It is hoped that this will promote settlement of differences and save expensive trial time.

What is the purpose of examination for discovery?

The lawyer for each party to the lawsuit will examine each party who is opposite in interest to that of his or her own client. The lawyer doing the examination will try to accomplish at least these basic things:

  1. To find out what the other party has to say about the matters which are in issue in the lawsuit;
  2. To see whether there are any areas of agreement among the parties to the lawsuit;
  3. To try to obtain admissions from another party which can later be used against that party at trial.

The lawyer who is doing the questioning has the right to ask a fairly broad range of questions dealing with the issues in the lawsuit. The lawyer for the party who is being examined is present to ensure that all of the questions asked are proper ones and to object if he or she feels that any questions asked of that party are improper.

Where will the examination for discovery be held?

Discoveries (as they are often called) are held at offices specially set up for this purpose. They are called “Examiner’s Offices” and they are privately operated. The parties, the lawyers and a court reporter will be there. No judge is present because this is not a trial or even part of the trial.

Members of the public are not present either.

As a general rule, parties have the right to be present when other parties are examined. Despite this, most parties do not exercise this right. Occasionally, even when a party does wish to sit in on the examination of another party, he or she will not be permitted to do so. This is something which varies from case to case. 

What are the times for examinations for discovery?

Discoveries are usually held from 10:00 a.m. to 1:00 p.m. and from 2:00 p.m. to 4:30 p.m. Again, this will vary according to the requirements of each case.

What should be done to prepare for discovery?

A lawyer from our office will spend adequate time with you to help you prepare for your examination for discovery. If you are appearing at the discovery as a representative of a company, you are obliged to acquaint yourself, as much as practically possible, with all of the facts known by the people who are now or were in the past employed by the company.

If you are appearing as a witness on your own behalf, you should also review all documents or notes which you have which pertain to the case. You should not worry about forgetting something while you are at the discovery however. This is not a test. If you are asked something that you have forgotten, or don’t know without looking up, you can, at the request of the examining lawyer, find out the answer later and advise of it by letter.

It is important to be as prepared as possible but don’t worry about forgetting something. We emphasize: this is not a test of your memory.

What are the results of discovery?

To protect your interests fully, we must prepare your case, right from the beginning, as if it will be necessary to go all the way to trial. However, lawsuits are frequently settled after discoveries have been completed because by then, each party has had an opportunity to review the strengths and weaknesses of the case and that of the other party or parties. Those strengths and weaknesses are largely revealed by the discoveries. Thus, even if your case is ultimately settled, we will be able to obtain the most favourable settlement for you if we are fully acquainted with the strengths and weaknesses of our case and those of the other parties.

Even if there is no settlement, the discovery serves a very useful purpose because it acquaints us with much of the evidence upon which the other side is going to rely at trial and it gives us an opportunity to obtain admissions from the other party which can be used against that party at trial. It is a valuable proceeding and well worth the effort involved.