Examinations for Discovery #1 - Introduction

How to approach an examination for discovery

This Substack post is the first in our series on Examinations for Discovery. We use the English Canadian term, but the principles apply – generally – to American depositions and ‘examens interrogatoires’ in Quebec. The American and Canadian processes differ from state to state and from province to province. For a paper to explain the Quebec process, please check out this article by W.C.J. Meredith, K.C. in the McGill Law Journal.

For greater depth on this subject for English Canada, please see Discovery Techniques: A Practical Guide to the Discovery Process in Civil Actions, available from Irwin Law here. The principles generally apply throughout North America.

For this series of Substack posts, we assume:

1.     Counsel can use at trial any admissions of fact made during the examination via the transcript.

2.     Counsel may cross-examine during the examination.

3.     Counsel uses the examination as a discovery tool and not one intended to get evidence from a witness in lieu of attendance at trial.

4.     Counsel for the witness may object to questions on the basis of relevance, repetition, or badgering, but not on the basis of hearsay, opinion, or other evidentiary rules of exclusion.

As with any examination, counsel should – must – prepare. As with anything you say or do during litigation, you should consider your goals, your choices, and what can go wrong.

Preparation starts with gathering the available evidence and thorough case analysis. Clearly, case analysis is limited by the available evidence. Indeed, case analysis should change when the examination is underway.

Consider the examination in light of what you already know. Answer these questions, almost as a short checklist:

1.     What (generally) do you hope to accomplish?

2.     What evidence do you already have from that witness?

3.     What evidence relates to the witness? 

4.     What factors weaken or strengthen the credibility of the witness?

5.     What may the witness know that will help or hurt your case?

By evidence, you should consider not only records and statements made by the witness but any records or statements from other sources or witnesses that mention the witness or that the witness may have seen or knew about.

Strategy matters a great deal. Discovery may have several purposes which greatly influence your preparation. These purposes are not mutually exclusive.

1.     You may simply want to understand your opponent’s case or hear what the witness has to say.

2.     You may want to test the strength of the witness’s testimony.

3.     You may want to obtain admissions for use at trial, either to support your case or to weaken your opponent’s.

4.     You may want

5.     You may want to shore up your case or weaken theirs to gain an advantage at a judicial settlement meeting or mediation or even to persuade opposing counsel that your case is so strong they should settle.

During the balance of this series on Examinations for Discovery, we will consider how the goals guide the tactics and questions, how to question a witness with each of the goals (and others) in mind, how to deal with obstructive counsel or uncooperative witnesses, how to prepare a witness to be examined without stepping across ethical lines, how to behave while opposing counsel examines your witness, and other topics that occur to us as we progress.

This Substack post is not subject to the paywall. The following ones will be, so consider a paid subscription. You will gain access to over 50 posts with techniques and demonstrations that have preceded this post.