Examinations for Discovery #2 – Prepare Yourself

How to get ready for an examination for discovery

Good lawyers prepare for advocacy events. This applies to examinations for discovery, big-time. These examinations may occur at different stages in each case. Some occur as a matter of course after the parties have exchanged their pleadings and disclosed relevant documents and records. Some occur before and some after mediation or other settlement-oriented steps.

Why is this important? The examination (plural in some cases) is an excellent opportunity to:

· Learn about your opponent’s case.

· Learn what your opponent knows about your case.

· Test the strength of both evidence and arguments to be made by all parties.

· Test and assess the credibility of the witness.

· Most importantly, gather admissions that you can as the case progresses.

Lawyers prepare with available information such as documents, records, witness statements, expert reports, and data available from public sources.

So, now you know why to prepare. The next question is how to prepare.

First, think about the case. You may want to accomplish all the goals in the bullet points above, but maybe only some of them. Which ones apply here?

Second, gather the available information. You likely have a great deal to sift through already. Pump your clients for what they know and what they have access to. Clients love to pass this obligation onto your shoulders, but you don’t know what they know. And this is important. How do you know what your client has if you don’t ask?

Third, and this applies to all steps that advocates take during litigation, update your case analysis. Yours, theirs, and the neutral one (which is the decision-maker’s default starting line). If you lay out the case from start to finish, you have an outline of what your examination will look like.

Fourth, remember that discovery witnesses are often the opposing parties. They are obliged to disclose relevant documents, and often, they neglect to do so for documents that they think will hurt their case or show them in a bad light. Or perhaps they feel a search for certain records will take too much time, effort or cost. These records may be exactly the ones you most want. Did the witness/party record thoughts or communications in an informal format? Handwritten notes, text messages, social media posts – these are all fair game for you to ask about. True, you can ask for these before the examination occurs. But just as often, you face a stone wall, either a refusal or an unacceptable delay. Build an inquiry about those records into your discovery plan.

Fifth, witnesses don’t know everything about their own case, much less yours. You will not ask about what they don’t know the same way that you ask about what they do know. In many jurisdictions, witnesses can and must promise (‘undertake’) to provide the answer or the records later. That will change how you approach such subjects.

Sixth, consider the gaps in your case that need to be filled. Is there a fact or record that only your opponent can explain?

OK, then, let’s go through the preparation steps as you put virtual pen to virtual paper.

From case analysis, you have determined the path from who the parties are to why or how they could prevail in the case. How does this turn into questions? Well, each step in case analysis consists of scenes. And you can and will ask about the scenes that matter to their case or yours. This is the glory of the Scenes Technique. Review the several posts on this Substack relating to Scenes, starting with this one.

There are five components to asking a witness about what occurred in a scene.