Preparation key to a successful examination for discovery

Preparation key to a successful examination for discovery (1)

By Nainesh Kotak

Facing questions from an insurance company’s lawyer may sound like a daunting prospect, but it doesn’t have to be once you know what to expect. Thorough preparation can take the anxiety out of an examination for discovery.

To get you started, here are a few things to know about this key part of a long-term disability lawsuit.

The basics

People who sue their long-term disability providers — as many are forced to do following an unfair denial or termination of benefits — can expect to go through an examination for discovery.

Boiled down, it’s essentially a chance for both parties to probe the case of their opponents for strengths and weaknesses, and to get a sense of all the facts and evidence that may be offered at trial, if it ever gets that far.

It’s not just the plaintiff who is expected to undergo an examination for discovery. Your lawyer will also get a chance to separately question other key witnesses in the case, which may include the claims manager who adjudicated for the insurer or various medical experts who were involved.

The timing of examinations varies depending on the nature of the individual case. Some will come ahead of mediation or any settlement talks between the parties, some will proceed after, and others cases may not even require them at all.

Preparation time

Before an examination can proceed, both sides must exchange what’s known as an “affidavit of documents,” which lists all the documentary evidence in their possession that is relevant to the case.

Typically, it includes clinical notes and medical records, employment forms or accident reports.

This gives both parties a glimpse at the case they will have to meet, and also helps the claimant’s lawyer get a sense of what the opposing side will want to ask you about during your examination.

We generally spend a significant amount of time talking our clients through the topics that will likely be covered and even set up mock discoveries to roleplay the types of questions they can expect to face so that there are no surprises when it comes to the real thing.

The setting

When the day arrives, examinations for discovery generally take place in a boardroom at a law firm or conference centre. Many court reporting firms have offices specifically designed for the purpose since their presence is required to transcribe a record of the proceeding that can be used as evidence in a future trial.

It can all feel a bit formal, with you and your lawyer on one side of the table and the insurance company’s representatives opposite. Before starting, you must also swear an oath or make an affirmation promising to tell the truth, just as you would before giving testimony in court.

If there’s one useful side-effect of the current pandemic we’re living through, it’s that many examinations for discovery are taking place online via videoconferencing software such as Zoom or Microsoft Teams. That means claimants can give their answers from the comfort of their own home, or from their lawyer’s office, which makes the whole process feel a little less intimidating.

The questions

Depending on the case, an examination for discovery can last anywhere from an hour to a couple of days. Either way, claimants can expect things to get quite personal as the lawyer for their insurer asks about their home life, education, work experience and even social media posts.

Questioning is likely to get more intense when it comes to your disability, with a focus on the circumstances under which it arose, how it has progressed over time, treatments you have undergone and any attempts at a return to work.

Your lawyer can’t help you answer any questions, but they will step in if the opposing lawyer crosses a line. For example, your lawyer will “refuse” questions that are unfair or touch on irrelevant information, which means that you don’t have to answer. They may also “undertake” to provide the other side with more information on particular questions if you’re not sure of the answer.

The aftermath

Following a debrief right after the examination, your lawyer will get to work on providing the answers promised in their undertakings to the opposing side. Court proceedings may also be required if the insurer has issues with the refusals given during the examination for discovery, and a judge may be asked to decide if the objections were reasonable or if you will be forced to answer the refused questions.

Once any disputes have been worked out, the information gleaned in an examination for discovery will play a key role in the subsequent negotiations, which will either lead to a settlement or push proceedings closer to a full trial.


We understand that being denied short-term disability or long-term disability benefits can be devastating. Your time to fight your disability insurance company is limited. Please do not delay in calling a short- and long-term disability claim lawyer at Kotak Personal Injury Law. We have successfully sued numerous disability insurance companies including Manulife, Sunlife, Desjardins, Cigna, Great-West Life, Equitable Life, Empire Life, London Life, Blue Cross, AIG, SSQ, RBC, Industrial Alliance, Canada Life, Fenchurch, OTIP, Teachers Life and more.

Call your trusted long-term disability lawyers at 1-888-GOKOTAK (Toll Free for all of Canada), or (416) 816-1500 (Local Number for Ontario Residents), (403) 319-0071, (587) 414-1010 (Local Numbers for Alberta Residents). Our consultation is free, and we don’t get paid until you do. We represent disabled people throughout Ontario and Alberta, including Toronto, Mississauga, Brampton, Milton, Georgetown, Orangeville, Oakville, Burlington, Hamilton, St.Catharines, Niagara Falls, Stoney Creek, Kitchener/Waterloo, Cambridge, London, Windsor, Markham, Pickering, Oshawa, Peterborough, Keswick, Kingston, Ottawa, Banff, Brooks, Calgary, Edmonton, Fort McMurray, Grande Prairie, Jasper, Lake Louise, Lethbridge, Medicine Hat, Red Deer, Saint Albert and other locations.