Usually, when you commence a Court Action (a lawsuit) for your Long-Term Disability (LTD) benefits, you can expect that both your lawyer and the lawyer for the Defendant Insurance Company will want to conduct what are called “Examinations for Discovery”. The parties will usually want to schedule these examinations well-before they even consider negotiating a resolution of your case. You may be wondering what an Examination for Discovery is and what the process might be like for you, the Plaintiff in an LTD lawsuit.
We hope that this article provides you with some useful information and insight into the Examination Discovery process (before, during and after) and thereby, reduces some of the stress or anxiety you might have about being Examined for Discovery in your LTD lawsuit.
What is Examination for Discovery?
Examination for Discovery is an important part of any LTD case. The process provides both sides with the opportunity to ask each other questions through their lawyers, in order to obtain evidence to support their own case and also to be informed as to what the other side is likely to say at Trial, should the lawsuit not settle beforehand. The lawyers may also use the information they obtain from the Examinations for Discovery to narrow the issues and to evaluate the their own and each other’s cases and to use the information they obtain against the other side at Trial.
In LTD cases, when the claim gets to trial, Insurance Company’s Lawyer and Client will have read the Plaintiff’s claims file, but never met the Plaintiff. Therefore, the Defendant Insurance Company will also use the Examination as an opportunity to meet the disabled Plaintiff and to assess his/her credibility.
What happens before Examinations for Discovery?
Generally, Examinations are scheduled before Mediation and before any settlement negotiations have taken place. However, there are also instances when Examinations occur after negotiations have failed and once it appears that the parties need more information and/or the matter is not likely to settle before Trial.
Well in advance of Examinations, the parties exchange what are called “Affidavits of Documents” and “Notices of Examination”. Affidavits of Documents detail a list of all relevant documents and must be sworn by the party to the litigation. The lawyers will determine which of the relevant documents they must produce and then provide those documents to the other side. Those documents are commonly referred to as “Productions”. At the Examinations for Discovery, the lawyers will ask questions related to information in the Productions.
The “Notice of Examination” is a document that is directed to the person who the lawyer has chosen to examine from the opposite side. It details the date, time and place of the Examinations and the documents that the person being examined will need to bring with them to the Examination. Both sides serve this Notice on each other.
In LTD cases, the Insurance Company will choose to examine the disabled Plaintiff (you) and the Plaintiff’s lawyer will want to examine the insurance representative. Usually it is the insurance representative who assessed and denied your LTD claim, who your lawyer will choose to examine.
The insurance company’s lawyer will typically need one day to examine the Plaintiff and the Plaintiff’s lawyer will need one day to examine the insurance company representative. Sometimes Examinations take longer than one day and sometimes they may last only a few hours or even less. There are many factors that will determine the length of an Examination (such as, the amount of Productions, complexity of legal issues, style of the lawyers, the ability of the person being questioned to understand and answer questions, the number and lengths of breaks taken, etc.)
In addition to exchanging Notices and Productions, your lawyer will spend time preparing you for your Examination. He/She may review the theory of your case with you; review your Productions; provide you with some general advice on answering questions; and go over topics and questions which you can expect to be examined on.
After Affidavits of Documents and Productions and Notices of Examination have been exchanged and your lawyer has prepared you, Examinations for Discovery occur.
What happens at the Examination for Discovery?
Examinations for Discovery usually take place at a Court Reporting Office, in a boardroom. You and your lawyer will sit on one side of the table and the Insurance Company’s lawyer and often, their client (who will not speak or ask questions) will sit opposite you. A Court Reporter, who generally sits at the head of the table, will also be there to record the examination, such that it may later be transcribed and provide an accurate record of what was said at the Examination. This transcript can be used as evidence at Trial or on a Motion or at Mediation. It can also be relied upon by the parties to confirm what additional information/documentation each agreed/refused to provide to the other (Undertakings/Refusals).
Before any questions are asked, the witness (or the person who is being examined) is “sworn in” or “affirmed”. This means that they make a promise to tell the truth. Once this is done, the insurance company lawyer will begin asking questions. Your lawyer is not able to help you answer questions. He/She, however, may refuse a question if they feel that it is irrelevant or in someway unfair to you. He/She will also agree to provide updated or additional information, on your behalf. Beyond that, your lawyer will not usually speak or interrupt and will sit beside you and take notes and ensure that the Examination is conducted appropriately.
Your role is to listen to the questions and, assuming your lawyer does not refuse a question, to answer the questions to the best of your information, knowledge and belief. You lawyer will likely tell you not to guess and if you don’t know the answer or you don’t understand the question, to let the other lawyer know so that he/she can rephrase the question or move on to another question.
In terms of the types of questions you can expect, you should be prepared for simple to very personal questions, as many things about your life are relevant to your LTD claim. Usually, the lawyer will start with simple questions about where you live and with whom. They might then move on to ask you about your education, training and work experience. Of course, there will also be many questions about your disability, including; your symptoms, diagnoses, treatment and functioning. Finally, they will want to know about your “activities of daily living” including, what a typical day might be like for you.
Often disabled clients feel emotional and may cry or exhibit their anger or frustration at their Examination. It is important to remember that, while the lawsuit is personal for you and not anyone else in the room, experienced disability lawyers on both sides, are accustomed to emotional witnesses and are prepared to offer breaks, as often as necessary. Similarly, if you are feeling physically in pain or discomfort, it is important that you do what you need to to feel better or to ask your lawyer to accommodate your conditions. It is not uncommon for disabled witnesses to answer questions while standing or laying down on the floor, take periodic breaks to stretch or walk around, shift in their chair or bring a back support or their own chair, go outside for a breath of fresh air, dim the lights or drawing blinds if light is aggravating, etc.
The Examination for Discovery of the insurance representative is similar in the sense that it takes place in a Reporting Office and is transcribed by a Court Reporter. You would not attend the Examination of the insurance representative. Your lawyer will attend on your side and on the other side the lawyer for the insurance company, the insurance representative who denied your claim (the witness) and the insurance company client (who will not speak) will attend.
The insurance rep will also be sworn or affirmed and will confirm that his/her answers will “bind” the insurance company; meaning that the evidence the person gives will considered the evidence of the company and can be used against the company in the lawsuit.
Your lawyer will cover a number of topics with the insurance rep, including questions concerning the person’s education, training and work experience, their interpretation of the terms and conditions in the policy and how they were applied in assessing your claim, confirming the details of the LTD benefit, the steps they took or failed to take in assessing your claim and the basis for their decisions throughout the claim and in coming to their final decision to deny your LTD claim. Your lawyer will also ask who else was involved in making decisions concerning your claim and what documents and information were relied upon in coming to their decision. Finally, your lawyer will want to know whether the insurance company has surveillance of you, either during your claim or during the litigation. (Please see our article on surveillance for more information).
What happens after the Examination for Discovery?
During your Examination for Discovery and until it is concluded, you are not allowed to discuss your case with your lawyer. After your Examination is concluded, however, you may discuss your evidence with your lawyer and your lawyer may be able to tell you what evidence was helpful and what was not and explain how your evidence and the evidence of the insurance rep might impact strength of your case.
Having concluded one of the most stressful days of the litigation process (short of Mediation and Trial), you will likely feel some relief. The lawyers on the other hand, will have much to do following Examinations. They will typically, begin requesting answers to undertakings. Undertakings are documents/information that the lawyers agree to provide to each other on behalf of their clients. Your lawyer may ask you for information to answer some of the Undertakings, though most Undertakings will be requested by your lawyer from your treatment providers.
In addition to answering Undertakings, the lawyers will decide how they want to deal with questions or requests for information that were refused by the opposing lawyer at the examinations (Refusals). They may decide to reconsider their own Refusals and provide answers or they may maintain their Refusals, in which case the opposing lawyer can decide whether or not to bring a Motion before a judge to argue for an order that the Refusal be answered. You would not need to attend this proceeding.
Finally, once all of the documentary and oral evidence has been brought to light, both parties’ lawyers will undertake a critical evaluation of the case and make recommendations to their clients. Often in LTD cases, after evaluating the strengths and weaknesses, the parties will agree to work to negotiate a settlement, either by way of written/verbal offers between the lawyers, at a settlement meeting or at Mediation. Based on the recommendations of your lawyer, you will instruct your lawyer on what offers you will make or accept and ultimately, the terms of your settlement. If no settlement is reached, you might then instruct your lawyer to proceed to Pre-Trial and Trial.
The Examination for Discovery process can be a daunting proposition for disabled clients who are struggling with physical and emotional and cognitive impairments. However, it is a critical and often necessary step in LTD lawsuits. Arguments concerning whether a Plaintiff is disabled according to the terms of the policy can be supported or refuted based, not only on the medical records, but also on the evidence of the Plaintiff and the insurance representative. Many cases may turn on evidence you provide on your examination. Therefore, it is important that you understand the process, appreciate its importance and are well-prepared to give your evidence.
If you have any questions about Examinations for Discovery in LTD lawsuits or if your LTD benefits have been denied and you are considering a lawsuit, we encourage you to contact us.
If you wish to discuss these options with a lawyer, the lawyers at MK Disability Lawyers have over 20 years experience dealing with disability cases. We would be happy to provide you with a free consultation, during which we can discuss these options and answer your many questions. We are here to help.
The preceding is not intended to be legal advice. This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog, you understand that there is no solicitor client relationship between you and the blog publisher. The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction. If your disability claim has been denied and you require legal advice, contact a lawyer specializing in disability law.