How to Get More Money for your Injury Claim: Giving Evidence at Discovery

There is one reason to take an accidental injury claim.  You want the greatest amount of money to which you may be entitled for your injury.

Rarely, making a personal injury claim may involve giving testimony at trial.  More frequently, and almost always in serious injury claims, a claimant must give personal testimony as part of a process called discovery, also called a "deposition".

You and your injury lawyer are in a partnership, and your lawyer can't do it all.  Your lawyer can't testify for you.  The preparation you do for your oral discovery will pay big dividends.  It will have a big effect on the money you get. 

Oral discovery happens when evidence is taken under oath (or solemn affirmation) with the opposing lawyer asking questions, usually in a law office boardroom. The evidence is recorded and a transcript is typed up.

In a personal injury case, the objective of the other side at oral discovery (broadly speaking) is to meet the claimant and form a personal impression of him or her, to explore inconsistencies between the claimant's medical history and the claimed injuries, and to establish the claimant's version of the story in a way that can be used later if the story changes at trial.

There are two styles of conducting discovery. First, discovery can proceed as a learning exercise, by which the defence attempts literally to learn or "discover" the plaintiff's story through a series of who, what, where, why, when, and how questions.  Second, discovery can be conducted as a cross-examination discovery, in which the lawyer asking the questions thoroughly prepares beforehand to establish areas of examination, in which she believes she can by use of leading questions, one fact at a time, establish points that will hurt the claimant's case.  The cross-examination method requires a level of skill and preparation from the examining lawyer.  Fortunately for plaintiffs, few defence discoveries are conducted according to the cross-examination method, and most discoveries proceed on the basis of who, what, where, why, when, and how questions.

The client can do many things to maximize the chances of giving good discovery evidence.  At Ches Crosbie Barristers, we meet with the client to properly prepare for their oral discovery under oath, and we find that clients who prepare for discovery have a much better experience. Here are some quick tips clients can use for giving a good oral discovery:

1.         You can't win an unwinnable case at discovery, but you can sure lose a winnable case.

2.         You will be under oath. Tell the truth--the insurance companies have access to huge databases, and if you have a prior claim, or a bankruptcy, or if you have posted information about yourself on the internet, they will find it. Never exaggerate.

3.         Be "on guard" the whole time. They may act friendly and professional but they are not your friends.

4.         Be pleasant, polite, and don't show any "attitude" or get in personal conflict with the examining lawyer.

5.         Listen to the whole question. Resist the human urge to interrupt.

6.         Resist the urge to tell them "well, what you really want to know is..." or "the question you didn't ask but should have is..." In other words, don't volunteer answers to questions they don't ask.

7.         Don't answer a question you don't fully understand. Say you don't understand.

8.         Don't try to guess "where they are going with that question." Just concentrate on giving good, truthful answers.

9.         If they don't ask the "right" question, tough for them.

10.       Don't guess. If you don't know, you don't know. You are not required to have an answer to every question.  If you are estimating, please tell them you are estimating.

11.       Trust us to protect you from questions not allowed under the rules. We can also clarify unclear answers at the end.

12.       Before the discovery, tell us what questions you are afraid of.

You are not alone in this.  A good injury lawyer will help you to prepare for discovery, but it is you who has to testify, not your lawyer.  Clients who do a good level of preparation and who are able and willing to follow their lawyer's advice will get the best results from their discovery, leading to more money for their injury claim.

http://en.wikipedia.org/wiki/Cross-examination; http://www.howardnations.com/crossexamination/cross_ex.html
http://www.oba.org/en/pdf_newsletter/DTFGeneralDiscoverybest.pdf

What is cross-examination and why should I care anyway? A Primer for Injury Victims

In my article How to Get More Money for Your Injury Claim: Giving Evidence at Discovery, I briefly touched on the importance of cross-examination.  This article explains more about the role of cross-examination in getting you the money you may be entitled to for your injury.

A famous legal authority once described cross-examination as the most powerful engine for the discovery of truth ever devised by man.  This statement of the critical importance of cross-examination to court process is accepted and even venerated by virtually all experienced lawyers and judges.  So what is cross-examination, and why should you care?

If you or someone you care about has a significant personal injury claim, then cross-examination and what you can do about it could be very important.  Read on.

To most lawyers, cross-examination is a method of asking questions of the other side's witnesses, and it means they can ask "leading" questions.  A leading question is one that suggests the answer ("You stopped beating your wife in 2005?").  But leading questions are only part of the story of cross-examination, and lawyers who think it is the full story often engage in table thumping or nitpicking sessions that give the impression of making a point (which nobody can remember afterwards) or peter out without leaving any impression at all.

Yes, cross-examination involves leading questions.  That is Rule #1 of cross-examination:  (1) leading questions only.  But most lawyers do not understand the other two cardinal rules of cross-examination:  (2) establish one fact per question, and (3) move toward an achievable goal.  This goal should be one which harms your adversary's case.

That's it - the only three cardinal rules of cross-examination.  But leave out any one of them and the lawyer is trusting to luck not skill.

One other thing.  Preparation is required to apply the above three rules to maximum effect.  Lots of preparation.

Should you care?  Any accident and injury client with a case important enough to have a lawyer should know that cross-examination can make or break a winnable case.  And there is something important that you yourself can do to stack the odds in favor of winning, other than choosing a lawyer who will effectively cross-examine the other side. 

Most personal injury claims don't go to trial.  Over 95% of accident and injury claims settle.  But the majority of significant injury claims (significant enough to have a lawyer) will go to "oral discovery".  This involves going to a law firm boardroom and being examined under oath or solemn declaration to tell the truth.

So what can the personal injury client do to influence the odds of winning in their favor?  Prepare!  The two or three hours spent in oral discovery will strongly influence the amount of your settlement and may be the most profitable few hours in your life.

A good, experienced personal injury lawyer will help you prepare for this important initial event of oral discovery.  How well your claim fares will depend on how good the defence lawyer is at cross-examination, and how well prepared you are to answer it.  The good news for injury clients is that most defence lawyers are not good at cross-examination, and that you can enormously improve your bottom line results if you prepare for your testimony. 

In the next instalment in this series, I will discuss winning cross-examination at the oral discovery and winning the cross-examination at trial.