How to Sink Your Motor Vehicle Accident Case At Discovery
Posted: Thursday, December 10, 2009
by Brenda Hollingsworth
Auger Hollingsworth
Many personal injury lawyers will tell you that cases are won or lost at discovery.
What is discovery?
Depending on where you live, the part of a lawsuit where the other side's lawyer gets to ask you questions, under oath, is called examination for discovery or a deposition. In most jurisdictions you, your lawyer and the other side's lawyer will meet in a boardroom in front of a court reporter. (Sometimes a videographer is also present.) The court reporter transcribes everything that is said under oath.
The days when lawyers were ambushed at trial with exciting new evidence (a.k.a the smoking gun) are largely over. The discovery process allows lawyers on both sides of the case to determine what the evidence at trial would be. It can help narrow the issues in the case. It allows the lawyers to assess what kind of witnesses the other side will be presenting. And, most importantly in my view, it forces the parties to the lawsuit to commit to their stories.
So, What Can Go Wrong?
Here are the top 5 serious mistakes I have seen that have sunk a person's case at discovery.
1. Failing to prepare: In a motor vehicle accident case, your pre-accident medical condition is relevant. The insurance company's lawyer will have access to all your medical records. He or she will know if you complained of headaches in the year leading up to your accident because your doctor will have written it into your chart. If you deny ever having a headache before the accident, it will hurt your case. Even if you innocently forgot. Even if the headaches are different from what you have after the accident. You can avoid this pitfall by asking your lawyer to review your medical records with you before your discovery.
2. Arguing with the lawyer asking the questions: Remember, one of the things being assessed is what kind of witness you will be a trial. If you are angry, rude or upset, the insurance company's lawyer will consider that when evaluating whether this is a case to take to trial.
3. Not Answering the Question: Lots of witnesses show up for discovery with a story to tell. However, it is not your job on discovery to tell a story. It is your job to answer the specific questions you are asked. I have seen with my own eyes a case where the client went off on a tangent and that tangent tanked the case.
4. Being too "Familiar" with the Other Lawyer: Most lawyers asking questions at discovery will be pleasant. Usually they will know your lawyer and will be friendly with your lawyer. Don't take this as a signal that you should be friendly. Polite? Absolutely. But should you tell them about your weekend and your kids? No way. There is no such thing as "off the record".
5. Not telling the truth: There is no easy way to fix a fib. If you say you cannot do something on discovery (e.g. "I can't dance." "I can't carry my child.") and you are caught doing it, your case will decrease in value instantly and significantly. Jurors will think that if you lie about one thing, you will lie about other things, like your limitations and pain. Your lawyer can help you deal with questions about your limitations. For example, if you try to avoid carrying your child because it really hurts, but sometimes you have to for safety or to sooth the child, this explanation is far superior to saying you "can't".
The bottom line is that careful preparation is required to ensure that you succeed at discovery.
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Brenda Hollingsworth is an Ottawa personal injury lawyer who only represents injured accident victims, never insurance companies. Brenda regularly achieves settlements for injured people. To read more about Brenda, or to schedule an appointment with her, visit http://www.personalinjuryottawa.ca or call 613 233-4529. Our initial consulation is always free.
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