In the United States, they call them depositions.
In Ontario, they are referred to as Examinations for Discovery, or Discoveries, or Discovery.
Examinations for Discovery take place under oath. That means that the deponent has to swear, or affirm, that they will tell the truth (not lie!).
They are an opportunity for the other side to ask questions about your case. They will ask all sort of questions about you as well. Some questions may be relevant to your case. Other questions may not appear to be relevant, but sometimes are. It’s best to trust you lawyer to determine which questions you ought to answer, and which questions you ought to refuse to answer. In the event that there’s a disagreement about what’s relevant, and what’s not relevant, the lawyers will identify the question as a “refusal“. It then would be up to a Judge to decide whether or not the question needs to be answered, and whether or not the deponent would need to re-attend at discovery based on the answer to the question refused. This is a common occurrence at Examinations for Discovery. Lawyers tend to agree to disagree, and move on in order to complete the Examination for Discovery; and then argue about the refusals later. It makes no sense to spend all day and waste time arguing refusals at the discovery itself when a Judge will ultimately have the final say in terms of whether or not the question needs to be answered and addressed or not.
Examinations for Discovery are not meant to be fun. Just as trial is not meant to be fun. Examinations for Discovery are stressful, and put the deponent in an uncomfortable situation which is completely not normal. It’s not everyday that a you are in a room full of lawyers, along with a Court Reporter having your every word recorded and transcribed to create a record of what’s being said. When you are being examined for discovery, you are being tested on your knowledge of the case at hand, and your credibility and likeability are put to the test. The lawyers on the other side will make a judgment based on how you present, what you say, and how you say it. Once the Examination for Discovery is completed, that’s it! There are limited opportunities to revisit what you said as whatever is said is recorded on a permanent record. If you made a mistake, or misspoke at your discovery, your lawyer can make a correction. But these sort of corrections are not as effective as what’s put on the record at the discovery itself. In most personal injury cases, the Examination for Discovery is the first, and likely the ONLY time before trial which the Plaintiff can make a lasting impression; either positive or negative on the other lawyer. If the Plaintiff wakes up on the wrong side of the bed and has a bad day and does not perform well at his/her examination for discovery; this will not bode well for his/her case moving forward. The Plaintiff is not afforded the opportunity to take the defence lawyer back home with them and show them the struggles they have with their activities of daily living over the spam of a week. The Examination for Discovery is the Plaintiff’s one shot before trial to properly articulate their pain, suffering and their experiences coping with life after their accident. That’s a lot of pressure. This is not normal either. But this is how personal injury lawsuits work in Ontario.
If you think about the Examination for Discovery process long and hard, it’s rather unfair to innocent accident victims. For most Plaintiffs, it’s their first time going through the discovery process. It’s new, strange and intimidating. For all of the lawyers, this is not their first time conducting an Examination for Discovery. The lawyers know how the process works. They know the things to avoid, and they know the things which a Plaintiff should say. Some questions are deliberately tricky. Other questions are deliberate traps intended to make a Plaintiff look foolish, or to undermine his/her case or credibility. It’s difficult for a Plaintiff who has not been through the process before to adapt, no matter how much pre-discovery preparation has been done with his/her personal injury lawyer. The uneven playing field is magnified even further when you consider the level of legal sophistication between the parties and the lawyers involved. On one hand you have highly skilled, experienced and trained lawyers who have worked for years at tripping up Plaintiffs with their line of questioning in order to undermine their cases. On the other hand, you have unsophisticated accident victims with limited, or no legal training, and no legal experience who are expected to stand up to questioning which have been intentionally designed and sequenced to try to undermine their case.
Many clients want to know how long their Examination for Discovery will take. Unfortunatelty, there are no hard and fast rules with respect to how long your discovery will take to complete. Under the Rule 31.05.1 of the Rules of Civil Procedure for Ontario, it states that each party is entitled to 7 hours to discovery for all of the other parties. But, the timeline is often extended by the Court (Osprey Capital Partners v. Gennium Pharma Inc., 2010 ONSC 2338 (CanLII) or on consent of the parties in order to get the job done. Often, there are multi party, and complicated cases which require more than 7 hours of discovery time. Discoveries also tend to slow down when there are interpreters involved. It just doubles up the speaking time and sometimes questions need to get repeated because they get lost in translation. Like a legal game of broken telephone. Breaks or disruptions between lawyers are NOT counted for the 7 hour time limit in the context of this rule. What our law firm tells clients is to be ready to be examined all day. That way, you won’t be disappointed if the discovery ends before the day ends. If you need to come back because the discovery could not be completed in the time allotted, then so be it. Get the job done to have the Plaintiff present his/her case as best as possible and keep moving forward.
Unrelated legal news: Are we excited for the Toronto Raptors upcoming season? Nope. We don’t expect much from this team. We expect Scottie Barnes to put up big numbers because he has been given the keys to the franchise and somebody has to put up numbers, even on a bad team. Lots of triple doubles from Scottie Barnes this season, for a losing club. It’s not hard in the modern NBA to fill the stat sheet when you have the green light to operate and the team is built solely around you. His agent is a lucky man.