Examinations for Discovery
At some point in your nursing career you may be required to participate in an Examination for Discovery. The information covered in this infoLAW will assist you with your preparations for participating in this legal proceeding.
What is an Examination for Discovery?
After a civil lawsuit has been initiated and, normally, after the filing of a Statement of Defence, Examinations for Discovery are scheduled. Examinations for Discovery are a pre-trial proceeding which permits any party 1 to a civil lawsuit to obtain information about the case of any party who is adverse in interest to him. 2 They are usually conducted in a law firm’s conference room or a court reporter’s office, not in a court room, and are governed by the applicable provincial/territorial or federal Rules of Court in the jurisdiction where the litigation is commenced. Questions will be posed by opposing legal counsel. All of the questions and responses are recorded by a court reporter who transcribes the testimony into a written transcript.
There are primarily seven purposes for conducting a discovery. They include: understanding the nature of the other side’s case; obtaining a preview of the documentary evidence; gaining admissions for use at trial; committing an opposing witness to his testimony; fixing and narrowing the matters really in issue in the litigation; gaining a sense of the personalities of some of the witnesses who counsel will cross-examine at trial; 3 and gathering information to facilitate settlement. Additionally, the testimony from the discovery can be used by counsel at trial for a variety of purposes including contradicting the testimony of a trial witness.
Who may be examined and what is the scope of the Discovery?
The provisions in the Rules of Court stipulate who may be examined. In most jurisdictions, these rules permit a lawyer representing any party to the lawsuit to examine under oath any other party adverse in interest, any officer of a corporate party, and any employee or ex-employee of a corporate body who has knowledge of the matters in issue in the case. The scope of an Examination for Discovery is also governed by the provisions in the applicable Rules of Court. In Alberta, for example, the Rules of Court provide that “a person is required to answer only relevant and material questions.” 4 Relevant and material questions are questions which could reasonably be expected “to significantly help determine one or more of the issues raised in the pleadings, 5 or to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.” 6
Do you need legal representation?
Yes. If you are to be examined at an Examination for Discovery, you should have legal representation. Your lawyer should ensure that you are fully prepared and understand the nature of the case before you are questioned. Many civil lawsuits have been lost at the discovery stage because of careless answers given by inadequately prepared or unrepresented witnesses.
How can you prepare?
You should do some independent preparation before meeting with your lawyer. This would include a review of all relevant documents such as: the patient record, any personal notes you prepared, statements you may have given, policies and procedures, letters and memos. At the pre-discovery meeting, your lawyer will probably review the documents, the pleadings, issues in the case and questions which opposing counsel may ask you. To help prepare you for your role as a witness, your lawyer may also assume the role of the opposing counsel and ask you detailed questions.
In addition to that preparation, there are a number of witness points you should keep in mind. When you respond to questions at the Examination for Discovery remember to: 7
- listen to the question and answer only that question. Do not volunteer information.
- wait until opposing counsel finishes the question before answering.
- take the time to think before answering.
- ask for clarification if you do not understand a question.
- admit that you do not know the answer to a question, if that is the case. You may provide the information at a later date by way of an undertaking.
- resist guessing when you are unsure e.g. measurements, amounts, times or distances.
- remain silent if your lawyer objects to a question. Respond when your lawyer directs you.
- be factual and concise. Do not ramble.
- avoid arguing with opposing counsel.
- answer “yes” or “no” if a question requires a “yes” or “no” response. The court reporter records responses verbatim and a “hum” or “uh ah” is an unclear response. ?
Nurse lawyers at the Canadian Nurses Protective Society (CNPS) are available to discuss attending at an Examination for Discovery or other professional liability issues with you. If you have questions, please call CNPS at 1-800-267-3390.
- A party to an action is a person who is named as a plaintiff or defendant. Refer to infoLAW Malpractice Lawsuits Vol. 7, No. 2, September 1998, online: www.cnps.ca.
- R. White, The Art of Discovery, (Aurora: Canada Law Book Inc., 1990) at 7.
- Alberta Rules of Court, r. 200(1.2).
- Pleadings are “the formal allegations by the parties to a lawsuit which are found in their respective claims and defenses.” Black’s Law Dictionary, Sixth Edition, St. Paul, West Publishing, 1990, at 1152.
- Alberta Rules of Court, r. 186.1.
- Legal Education Society of Alberta, Alberta Bar Admission Course Materials, 1997/98, Civil Procedure, at X-5.
N.B. In this document, the feminine pronoun includes the masculine and vice versa.
THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.
Vol. 13, No. 1, January 2004