Many of the questions our clients and potential clients ask us have no simple answer. Personal injury law is complex, every single case is unique, and every settlement is determined by the particular facts of that case. Your experience and ultimate settlement may be very different from someone else you know in similar circumstances.
However, where the legal system is very consistent is in the process it moves through on the way to either a settlement or a judgement. And a core step in that process is called Examination for Discovery.
If you were injured in a vehicle accident in Newfoundland and Labrador and you believed it was someone else’s fault, you would file a civil action for damages. You and your lawyers, assuming you hired lawyers, would proceed through the system. In straightforward cases, where the facts are clear, a settlement might be arrived at fairly quickly. Where the injury is more serious, and the facts more complex, an agreement to settle might take a while. The longest possible outcome would see that dispute ruled on by a judge after a trial. But in every case that does not settle quickly, the parties and their legal representatives undergo Examination for Discovery.
What is Examination for Discovery?
Quite simply, it’s when all the facts of the case are put on the table for all the parties involved to see. It includes both parties being questioned under oath, and is the way you (and the other parties involved) “discover” each other’s view of the case. It is a formal process where all information each side holds is disclosed to the other. Discovery includes describing all copies of any documents that either party could use at a trial to prove or disprove a fact related to the case. You then have to make them available to the other party, should they wish to review them.
Discovery is a very important part of the legal process. Through it, both parties collect the information necessary to assess the strengths and weaknesses of each other’s case. It also makes clear what facts are not in dispute and where you and the other party agree on the version of events.
So, then what?
After Discovery, with all the evidence disclosed, the parties can move towards trial. But Discovery serves another very important function. In many cases it removes the need for a trial. The lawyers will now have a sense of the merits of a case, on both sides. While each case is different, experienced lawyers will be able to evaluate the logical outcome of this particular one, based on the evidence they see. Remember, good lawyers, such as you’ll find at Roebothan McKay Marshall have seen dozens – perhaps hundreds – of cases through this process. They know that it’s a good time to sit down and see if both sides can arrive at an agreement they can be happy with.
Remember, trials are difficult, expensive, and with no guaranteed outcome for either side. They are risky. If they can be avoided by a reasonable settlement that works for both parties, most lawyers would advise their clients to do so.
This means that Examination for Discovery is typically followed by a settlement meeting. There the lawyers, having assessed the risk for their clients, will see if they can negotiate an agreement. If that doesn’t happen the case moves towards trial. But, as a trial date approaches, both parties most likely will continue their discussions. As we said above, trials are risky, and most lawyers would prefer to avoid them if they can solve their client’s problems while doing so. The famous saying is, “Settled on the courthouse steps” and that actually happens surprisingly often. Or a settlement is reached in the early days of a trial.
Yes, the process is expensive, complex, and time consuming. But Roebothan McKay Marshall knows how to make it work best for our clients. If you need help with a personal injury matter, please talk with us. We’d be glad to see if we can help.