This post continues a series describing the common litigation process for motor vehicle accidents. The entire resource is here:
Ten Steps in the Litigation Process
- Litigation Step #1 – Filing a Statement of Claim
- Serving a Statement of Claim
- Work With Insurance Adjuster vs. Statement of Defence
- Preparing & Serving an Affidavit of Records
- Litigation and Questioning (a.k.a. Examination for Discovery)
- Attending Questioning by Defence
- Attendance at a Questioning on Undertaking Responses
- Attend at Independent Medical Examinations and Defence Medical Examinations
- Prepare & Attend Mediation – The Mediator Role in MVA Litigation
- Prepare and Attend Trial in Injury Law Litigation
In this edition we discuss further the process of Questioning.
When you attend at a Questioning, it is important to remember that there is nothing that you can say that is helpful to your case (it is very much like what you see on tv where the cop says ‘anything you say can and will be used against you in a court of law’)! Prior to attending Questioning, your lawyer should meet with you to prepare you. Typically that would involve providing you with a copy of all of the documents that have been obtained on your behalf (as you will likely be asked questions about those documents). The documents will relate to your pre-accident medical health and post-accident medical health and treatment. If you have an income loss, your lawyer will have provided documents to the insurance company’s lawyer regarding your pre and post accident income.
It is important to remember at all times that ‘less is more’ when it comes to a Questioning. If you are not sure or don’t remember, then you should say so. Never guess. The Defence lawyer will make every effort to make the Questioning look like an ordinary everyday conversation. That is very far from the truth – do not be ‘taken in’ by their friendliness or pleasantries. Even though it may appear like a friendly chat about the accident and your injuries, a Questioning is more like (and should be treated like) a police interrogation. It is often hard to understand what the Defence lawyer is doing – it is hard to win a fight if you don’t know the what winning or losing looks like. This is the advantage that a Defence lawyer has over a Plaintiff at a Questioning. Typically the Defence lawyer will have done dozens or possibly hundreds of Questionings before, whereas the Plaintiff is at his or first (and hopefully last) Questioning.
The Questioning will take place at either the offices of the Defence lawyer or your own lawyer. Normally it is held in a boardroom. A court reporter will be in attendance as well. The court reporter will type out a transcript of everything that is said during the Questioning. It is that transcript that can be used against you in a trial (if your claim does not settle before going to trial). It is also important to understand that ONLY the Defence gets to use the transcript at trial and ONLY the defence gets to decide which questions and answers from the Questioning are shown to the trial judge.
It is important to understand that a Questioning is not a conversation and should never be treated as such. Your responsibility is to respond to each question that is asked with (as far as can be done) ‘yes’, ‘no’, ‘I don’t know’, ‘I’m not sure’ or ‘I don’t remember’. Never guess and don’t make any assumptions. Listen carefully to each question and respond only to the question that has been asked – don’t explain or expand on what you think the other lawyer might be asking.
A Questioning is not a ‘hearing’ – no decision is made as a result of a Questioning. It is a completely one-sided (slanted to the other side) process that is most like a police interrogation. The transcript that is recorded by the court reporter is much like having the police videotape an interrogation and then having the police use it against the you by only having to show the judge the parts of the videotape that the police thought portrayed you as a criminal. The judge would not be allowed to see any parts of the videotape where you declared your innocence.
At Questioning you are NOT building a record that can help you. Every thing you say can be used against you. Remember, you are not smarter than the Defence lawyer–that’s a game you cannot win. Say as little as possible, never volunteer information, and never guess – these are the only ways to limit the damage that you can do to your case at a Questioning.
At a typical Questioning there will be a number of questions that you don’t have the answer to, but with some reasonable efforts you could find out the answers. There may be some doctors or treatment providers that you have seen that you have not provided their treatment charts to the Defence lawyer prior to the Questioning. This may be because your lawyer was unable to find the doctor or treatment provider or was simply unaware that you had seen a particular doctor or treatment provider. In these situations it is usual for the Defendant’s insurance lawyer to ask for an ‘Undertaking’ to provide the answers to the questions, doctor’s or treatment provider’s treatment charts, as the case may be.
An ‘undertaking’ is a promise made under oath (at a Questioning) to make reasonable efforts to provide an answer or obtain a document that is relevant and material to your claim for damages from your injuries. Typically your lawyer will respond at the Questioning on your behalf when a request for an Undertaking is made by the lawyer for the Defendant.
After the Questioning, your lawyer will emails or send letters to the doctors or treatment providers requesting their charts or other documents that have been promised to the Defence lawyer as part of the Undertakings. If any of the Undertakings were things that only you can do, such as searching your own home for a particular document or item, then your lawyer will ask you to complete that Undertaking.
As an Undertaking is a promise made under oath, it is important to complete these promises to the best of your ability. It is okay if you are unable to provide the document or item that you have Undertaken to obtain, as long as you made your best efforts to try to complete the Undertaking. Typically it will take 3 to 4 months to complete all of the Undertakings that may have been given at your Questioning. Of course, the amount of time that it takes to complete all of the answers to Undertakings will be somewhat dependent upon the number of Undertakings and the assistance or lack of cooperation that you receive from others.