Examining the Examination for Discovery

December 29, 2015 Published by
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You’ve seen it on Perry Mason, Suits, The Good Wife…just about every legal show or movie, particularly of the American variety: a charming, charismatic lawyer questioning a person across a boardroom table, lulling them into sense of comfort before bombarding them with a combination of witty comments/angry questioning/wild gestures/highly personal and irrelevant statements.

While no doubt actors accurately portray lawyers’ charisma, a deposition, or examination for discovery as it is known in Canada, operates quite differently in real life.

At an examination, each party attends with their lawyer. The person giving evidence will either swear or affirm, to tell the truth. The lawyer examining “discovers” more about his or her case through asking questions of the other side. Examinations for discovery are not opportunities to cross-examine or be aggressive; they are essentially question and answer sessions and are intended to be polite and respectful.

For example, in personal injury slip and fall cases, a lawyer representing the injured person may want to find out more information about the conditions of the area where the slip and fall occurred and what exactly was done (or not done) by the owner or occupier of the property. The lawyer acting for the property owner may wish to ask the injured person questions about their injuries, and what type of activities they can and cannot do as a result of their injuries.

Examinations are not a test. There are no “wrong” answers. However, each answer is recorded and a transcript of the evidence is created. The parties can use the transcript of the examination at trial to attack credibility if a person gives evidence that is different than the evidence at the examination. The transcript may also be used by expert witnesses in helping to formulate an opinion.

While the procedure is generally the same for examinations for discovery, each case is unique and requires specific advice. If you are being examined, your lawyer will prepare you.

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