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Preparing for Discovery – What Those Who Have Been Injured Can Expect

Thorough preparation prior to discovery can positively impact the size of your personal injury settlement

Affidavit of Documents

Within the discovery process, each party must give the other side an Affidavit of Documents, which lists all relevant evidence in their possession. The purpose of this is to allow each side to review the documents relevant to the case and therefore know the good and bad of both sides of the case, allowing them to come to a reasonable valuation of the file.

12 Personal Injury discovery Tips For Plaintiffs

12 Personal Injury Discovery Tips For Plaintiffs. Click above for larger image

An Affidavit of Documents includes three schedules:

1. Schedule A list all documents that the party has in their possession which are relevant and they do not object to producing;

2. Schedule B lists all documents that the party has in their possession which are relevant but are not being produced due to privilege; and

3. Schedule C lists all documents that used to be in the party’s  possession or control and no longer are.

The parties in turn, can ask to examine the documents in the other party’s Schedule A. The legal process of Document Production requires each party to produce any documents listed in their Schedule A and requested by the opposing side. If there are any documents that the opposing party believes is relevant, those can be requested during the discovery.

The parties can ask questions about the other party’s Schedule B.
For example, if Defence Counsel has had private investigators conduct surveillance of the Plaintiff, it may go in Schedule A or Schedule B according to their strategy. If it is in Schedule B, the Plaintiff will not get a copy of it, but can request a summary of what it shows. If either party has witness statements, they may go in either schedule. If they go in Schedule B, the party has to identify who the witness was and what their contact information is, as well as provide a summary of the evidence that the witness has given.

Schedule C is a rare category and there are typically no documents that go in it. An example of something that would go in it would be if a plaintiff took photographs of the accident scene on their cell phone, but their cell phone was subsequently broken, lost, or stolen and thus the photographs could not be retrieved.

Examinations for Discovery

The discovery stage of a personal injury lawsuit gives each side the opportunity to further collect, evaluate and investigate information relevant to the claim. Discovery is less formal than trial and there is no judge present. The party, along with their lawyer, and the opposing lawyer(s) will present at this proceeding. In the case of an injured person (the Plaintiff), their lawyer will be there and then the lawyer for the insurance company of the Defendant will be there. Typically, the other party is not present during the discovery, but there are exceptions to this. At the discovery, the party’s testimony is taken under oath and transcribed by a court reporter. This is the first time that the defense lawyer will meet the plaintiff in person. Each opposing lawyer is given the opportunity to directly ask questions of the Plaintiff. They find out what information the other side has. The lawyers will use the transcripts to review and prepare their side of the case for mediation/trial. Body language, personal appearance, and pauses in speech may all be considered in assessing your strength and believability as a witness, which may play a part at a Mediation or Pre-Trial.

The discovery process expands on the information contained in statement of claim and statement of defense documents, as well as clarifying points of uncertainty.

Your personal injury lawyer will make sure you are well prepared for the discovery process so that you know what to expect and are able to stay as confident and relaxed as possible.

To better understand the purpose of discovery it helps to know what the goals and intended outcomes are for each of the parties. What does each party want?

To be successful, the Plaintiff must be able to prove that he was injured because of the actions of the person or company being sued and that he suffered loss because of his injuries or that he is unable to work due to a disability and that his disability benefits / income replacement benefits were wrongfully denied. He must be able to provide supporting evidence for the dollar amount of his claim. He needs to find out what arguments the defense has that stand in his way and dispel them.

Also to be successful, the Plaintiff needs to be likeable and credible. This means being genuine and forthcoming in your answers. Do not try to hide anything. Do not cross your arms or glare at Defence Counsel. The best-case scenario for your discovery is that Defence Counsel writes to the insurance company “A jury is going to love this Plaintiff. We had better settle before Trial”.

Counsel for the defense represents the insurance company of the person or company being sued. It is the job of the Defence Counsel to find out as much information as possible in order to support his recommendation on how much to pay the Plaintiff at the end of the lawsuit or what the risks of going to trial. At the same time, his goal is to find out any information that can be used to minimize the amount paid out to the plaintiff or to refuse to pay the disability benefits. To be successful, Defence Counsel is looking for any evidence that supports arguments that the person or company being sued is not at fault for the injuries, the injuries are not that bad or are not related to the actions of the person or company being sued, or that the plaintiff can do their job, do their own housekeeping and personal care, and no longer needs any medical treatment. They are also looking for any discrepancies in the Plaintiff’s testimony to show that the Plaintiff may be lying.

Although the discovery stage is less formal than court, do not assume it is trivial. All information exchanged will be recorded and, if relevant, can be used as evidence during trial proceedings.

As the plaintiff you may be asked questions regarding your life before the injury or disability, including:

Background information

  • Date of birth
  • Marital status
  • Name and health of spouse
  • Name, ages, and health of any children
  • Health of other family members

Education and employment background

  • Education History
  • Specialized training
  • Occupation
  • Income
  • Work History
  • Records of achievements, disciplinary actions, or absences


  • Illnesses,
  • Prior injuries,
  • Medical treatments and providers,
  • Surgeries,
  • Counseling,
  • Medication

Recreational activities

  • Hobbies
  • Sports
  • Social activities


  • Who was responsible for what around the house
  • Who was responsible for what around the yard
  • The size of the property

You may also be asked a number of questions about the car accident, slip and fall, assault, etc (if applicable):

The events of that day prior to the car accident or fall

  • Your physical condition
  • If you had consumed any alcohol, prescription drugs, over the counter drugs, or illegal drugs in the 24 hours prior to the collision

The events leading up to the accident or injury

  • Vehicle condition prior to accident (brakes, signal lights etc)
  • Destination of intended travel
  • Collision date, time and location
  • Speed of travel
  • Direction of travel
  • Vehicles around you
  • What you saw and when
  • Where were other occupants sitting
  • Weather on the day of the accident (snow, rain, sunny etc)
  • Roadway conditions (snow covered, visibility, congested etc)
  • Wearing seat-belt?
  • Tuning radio?

How the collision occurred. The movements during the collision

  • Did your vehicle get pushed or dragged
  • Did you get thrown within your vehicle
  • Did you hit any part of your body on any part of the vehicles
  • Did your airbags deploy

The aftermath of the collision

  • Movements of you inside your vehicle
  • Police attendance
  • Ambulance attendance
  • Eye witnesses
  • Conversations on the scene
  • Any immediate injuries, symptoms, and medical intervention
  • Description of injuries

Finally you will be asked about everything that has occurred since the accident or the onset of your disability, including the following:

Injuries / Symptoms

  • A list of all physical, psychological, and cognitive symptoms
  • The intensity of symptoms
  • Anything that aggravates or relieves your symptoms


  • A chronology of treatment to date
  • A list of treatment providers
  • Any diagnoses that you have been told and who told you them

Employment and Education

  • Whether you are back to work or school
  • Whether you are doing modified duties at work or receiving accommodations at school
  • Whether you have tried but failed to succeed in returning to work or school
  • What treatment providers have told you that you can or cannot return to work or school
  • Whether you believe that you can or cannot return to work or school and the reasons for this belief

Household chores

  • Any changes in who does what around the house and yard
  • Any changes in how you can do your house or yard-work (ie. do you need to take breaks in between tasks or during tasks)
  • Any house or yard-work that you no longer do as a result of your injuries

Childcare duties

  • Any changes in who does what aspects of childcare
  • Any changes in activities that you do with your children
  • Any activities that you can no longer do with your children

Personal Care

  • Any difficulties you have with your personal care
  • Any assistance you require with your personal care and who provides this assistance
  • Any personal care tasks that you can no longer do for yourself
  • Any modifications necessary in your personal care routine

Recreational Activities

  • Any activities that you can no longer do and why
  • Any activities that you have reduced and why
  • Any activities that you have modified and why

It is important to wait until the lawyer is completely finished with his question before you reply. Even if you know what the lawyer is going to ask, the transcript cannot record two people talking at once.

Many questions lend themselves to a simple yes or no answer. If that is the case, provide a yes or no answer.

Other questions are presented as a statement of truth and require the person under oath, to agree or disagree. People often feel that if it is mostly true, they should agree simply to be friendly or agreeable. Do not do this. If only part of the statement is true, advise that you agree with that part and deny the rest. If none of it is true, deny the statement. If it is almost true, advise of how it needs to be corrected.

Your injury lawyer will remind you to refrain from elaborating on your answer unless you are specifically asked for further explanation with a few exceptions. It is important to consider the perception that your answers are leaving. This is best illustrated by a couple of examples

Example 1:
Defence Counsel asks you if you are back to work yet and the answer is no, but you are considering a return to work place once able to do so. The answer is no and no elaboration is necessary. They will ask about why not or any return to work plans. If they do not ask about this, the perception is still accurate – you are not back to work yet.

Example 2:
Defence Counsel asks you if you can mow your lawn. You can physically mow your lawn and you did once when your mother-in-law was coming to visit, but it left you in bed for three days due to the increased severity in your pain symptoms and you have not done it since.

The answer is not no, you cannot physically mow your lawn. You have successfully done it and if the world were going to end if you did not mow your lawn, you could do it again but again be in 3 days afterwards.

The answer is yes, you can mow your lawn, but further elaboration is needed. If you simply say yes, Defence Counsel’s perception will be that you do mow your lawn. You need to elaborate that you can mow your lawn, but it causes an aggravation of your symptoms to the point where you were in bed for three days after attempting it and you no longer attempt it. This answer will leave an accurate perception of your abilities with Defence Counsel.

The lawyers for each party will use the information gleaned from the Examination of Discovery to build the case for their own argument. Each side follows up after discovery by providing and researching any documents (known as undertakings) that have been requested from the other. The Rules of Civil Procedure provide a very short period of time to provide undertakings, but the reality is that most undertakings involve obtaining documents from third parties and this can be very time consuming. As such, it can take 9 months or longer to supply undertakings.

Thorough preparation prior to discovery can positively impact the size of your personal injury settlement. One of the Kahler personal injury lawyers will walk you through the process and prepare you in advance.

In preparation for discovery, your lawyer may:

  • Provide you with your affidavit of documents for review
  • Provide you with documents from the defense for review
  • Have you review a timeline of events related to injuries, rehabilitation and or post accident work history.
  • Inform you of questions that might be asked specific to your case
  • Perform a pretend Q and A examination that will further educate you on how to best respond.

At A Glance – Personal Injury Discovery tips for Plaintiffs

  • Tell the truth.
  • Be friendly and approachable. Make eye contact and smile. Do not be short or cross. Do not cross your arms or glare at anyone.
  • Do not look to your lawyer for approval before answering a question. If the question is inappropriate, your lawyer will interrupt.
  • Give only verbal answers. Nonverbal answers do not show up on the transcript.
  • Do not interrupt Counsel.
  • Listen to the whole question and then think about your answer before answering.
  • Do not elaborate, with the exceptions above.
  • If you do not hear or understand the question, ask that it be repeated or re-phrased
  • If you do not know or remember an answer, tell the Defence Counsel this
  • Do not use the words “never” or “absolutely”
  • If you need a break, ask for a break
  • Dress as though you are going to your grandmother’s – conservative

Further Medical Examinations

In addition to the medical examinations carried out by your own physicians and specialists, your lawyer and Defence Counsel may require you to undergo medical or psychological assessments with doctors of their choosing. These are not doctors who will provide you with treatment, but ones who will assess you and provide the lawyer who hired them with a report on your condition. In many cases, the findings of defence medical assessors conflict with earlier reports and leave you feeling vulnerable. Although this process can be very uncomfortable, it is to be expected. A list of tips will follow in another blog.

Investigations, on both sides, continue until the case is settled. At the Kahler Personal Injury Law Firm we continue to prepare your case for trial. Preparation is a powerful predictor of success, and many of our cases settle out of court.



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