Getting comfortable with the process is key to a successful examination for discovery.
A few nerves are natural when plaintiffs are faced with the prospect of questioning by the lawyer for an insurance company, but it’s not nearly so intimidating when you know what to expect.
If I had to sum up an injured person’s job at an examination for discovery, it’s to tell their story in a clear and truthful way. As their lawyer, my job is to clear any obstacles that stand in the way of them doing exactly that.
When preparation goes well, it can pay significant dividends — this is often the first good look an insurer gets at the plaintiff and how they might be viewed by a jury. It’s not the only factor that goes into an insurer’s assessments, but it’s also not unusual for settlement discussions to intensify after a client makes a good impression at the examination for discovery.
Below are a few tips to help you ace yours:
What to expect
At Edwards Pollard LLP, preparation for a client’s examination for discovery starts very early, but very small — with a simple introduction to the concept at our first meeting. Although it’s a standard part of any lawsuit, few non-lawyers are aware that they may have to undergo questioning by opposing counsel long before their claim ever makes it to trial. This is one of the more significant steps in litigation where a plaintiff’s direct participation is required, so I want to make sure they know upfront what will be expected of them.
Start a journal
The emotional and physical damage you suffered in the hours and days after your accident is probably etched into your memory forever, but it may be much harder to recall the specific details about your symptoms over time. That’s why one of the first things I advise as a personal injury lawyer is for clients to start a journal. Entries don’t have to be made every day, but if you jot down details after noticing headaches, pains or other issues at certain times of the day or after various activities, it will help you refresh your memory ahead of your examination.
Forget what you’ve seen on TV
When people think about what’s going to happen at an examination for discovery, they picture a Law & Order-style interrogation led by a lawyer determined to trap them in a lie. In reality, the process is much more cordial, and a lot less exciting.
I tell clients to try to think of the examination as a conversation with the opposing lawyer, where there are no trick questions and no wrong answers. And in the rare case an inappropriate or irrelevant question is asked, your lawyer will always be there to step in and get things back on track.
Run a dress rehearsal: the practical stuff
Things really kick into gear in the week or so ahead of the examination for discovery, when I like to schedule at least one preparation meeting with the client, and possibly more, depending on their needs.
One major focus at the prep meeting will be on the practicalities of the examination day — basic information such as where and when it will occur, who will be there and what their role will be for the day. In pre-Covid times, examinations typically took place in a boardroom at a law firm or a court reporter’s office, but now we’re more likely to proceed on Zoom, which means we’ll practice logging in, testing the Wi-fi and microphone to ensure you’re tech-ready.
I find that ironing out any technical issues ahead of time gives my clients one less thing to worry about on the day of their examination, so they can focus on telling their story.
Run a dress rehearsal: the substantive stuff
Having guided clients through countless examinations for discovery, I know that the questioning follows a very similar format for almost all plaintiffs. Before our prep meeting, both sides will have exchanged an “affidavit of documents,” listing all the evidence relevant to the case — including clinical notes and medical records – which allows me to give my client a preview of the types of questions the insurer will ask at the examination. Together, we’ll go through the topics so there are no surprises on the day itself.
Embrace the silence
When the day of the examination for discovery finally arrives, I check in at least an hour ahead of the start time and try to get my client in a relaxed frame of mind. There will always be some nerves going into the room, but the more we can disperse, the better.
An examination for discovery is full of awkward silences as lawyers pause to go over their notes or to give the court reporter a chance to keep up, and a nervous plaintiff is more likely to try to fill those gaps with unnecessary or potentially damaging details.
I encourage my clients to listen carefully to the question they’re asked, take a moment to digest it, and then answer in the most open, honest and precise way they can.
If you have been injured in an accident and are considering hiring a lawyer to represent you, check out our blog for tips on choosing a personal injury lawyer.
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