You are subject to questioning by a lawyer representing the enemy: ICBC or another insurance company. You are under oath.
Everything that comes out of your mouth is recorded, word for word, by an official court reporter. Everything you say can be used against you.
You are spared the bright lights and the rubber hose but really, it sounds like a mighty fearful situation! The thing is, when you boil it all down, an examination for discovery should not be nearly as stressful as you might imagine. Unless you are a fraud.
Telling the truth is easy, and being truthful is the fundamental direction I give to my clients who are about to be examined.
I will first set the stage for the event. The setting is a boardroom table in an office. You are sitting at the table beside your lawyer. The insurance company’s lawyer is sitting on the other side of the table.
The person whose job it is to record everything is sitting at the end of the table.
That’s it. There is no judge or jury present. Don’t even expect the negligent driver ICBC is defending to be there.
Why would he or she bother to show up? ICBC is looking after his or her defence and is responsible to pay any settlement or court judgment.
I have attended countless examinations for discovery of my clients and never once has the offending driver had enough interest in the case to sit through the examination of my client.
Your role, on the face of it, is very simple. All you have to do is answer questions that are posed to you. It is not a theatrical performance.
The official record of the event will not have any indication of what you were wearing, how you were sitting, how you did your hair or make-up, or if you had a huge ring through your nose.
No record will be made of the time it takes you to think about a question before you answer it, whether or not your voice quivered, whether or how you were fidgeting, or where you were looking.
It is not like a final exam. You will not be expected to have memorized precise details such as dates, or anything else for that matter.
Provided you tell the truth, there are no wrong answers. You will not have to prepare a speech or make notes to ensure that you say, on the record, everything there is to say about your case.
Your job is simply to answer questions. It doesn’t hurt your case at all if the ICBC defence lawyer doesn’t ask you about something that you think is important.
Your lawyer is right beside you and will interrupt the examination if the ICBC lawyer asks improper questions.
Your lawyer will keep your water glass full for you. There will be bathroom breaks and a lunch break.
That doesn’t sound so bad, does it? Well, there’s a little more to it. You need to have your wits about you. You need to pay close attention to what you are being asked and think about your answer before giving it.
ICBC lawyers are clever. I’ve had a client give an affirmative answer to a question posed by the ICBC lawyer who referred to a significant impact crash as a “little bump.”
My client was concentrating on making sure her answers were truthful and honest. She wasn’t paying attention to the language that was being used.
Using language that minimizes the crash or injuries is just one of a number of tricks ICBC lawyers sometime use during an examination for discovery.
I will discuss some of the other common examination for discovery tricks in another column (click here for that column). The thing is, when sitting down to be examined, the last thing I want is for my client’s head to be swimming in fear of unfair questioning tactics.
All of the tactics can be neutralized if you follow the golden rules of listening to the question, thinking before blurting out an answer, and being truthful and honest.
Would you like to see the actual legislated rules about examinations for discovery? Click here: Rules of Court – examination for discovery rules.