Examinations for Discovery #7 – What Does an Outline Look Like?

How to make the outline work for you

Although the Advocacy Club teaches – preaches – the use of formulae, the plain fact is that each examination is unique, and each examiner’s style is unique. It simply will not work if you channel and mimic your favourite litigator.

This principle applies equally to outlines. Some of us need to see each word of a question written in our outline. Some only require a reference to the subject of the question. But all of us need something. We can’t just ‘wing it.’ This post will cover the essentials.

First, identify all the scenes you plan to cover. Put them in a sequence that makes sense to you. Understand that your sequence for the discovery will differ from a similar outline for a cross or direct examination - even where the witness is the same, which is the case when you cross the same witness you examined for discovery or in a deposition before trial.

For each scene that you list, prepare these items. For this, I am indebted to a very gifted law school student (now a lawyer), Jordana Halpern. She demonstrated this technique in her class assignments way back in law school. This is an example of my father’s rule that the best way to learn a subject is to teach it.

Jordana prepared a block for each scene.

1.     She identified the subject in a way that allowed her to create one or more headlines easily.

2.     She then identified what she hoped to accomplish with her question sequences about that scene.

3.     Then, and this is most significant, she identified what could go wrong during those sequences. Examples are:

·        If the witness answers this way, ask these questions. If that way, follow this sequence.

·        To avoid this answer, phrase the question this way.

·        If the witness mentions this, use this exhibit or refer to this previous statement.

·        If the witness uses this word or phrase, follow up with these questions.

·        Then and only then did she write out her Five-and-Out sequences, as many as the scene required.

No examination goes precisely as planned. In the teaser to Direct Examinations, I quote Mike Tyson’s famous dictum about a boxer’s fight planning. In the same vein, Rabbie Burns wrote, “The best-laid schemes o’ mice an’ men gang aft agley.” You get the point.

When you create your outline, build in the flexibility to switch between sequences in a different order to that planned. If your witness doesn’t follow your script - and most do not - you need the freedom to follow the best avenue that your judgment identifies. Then, once you have pursued the rabbit as far as you can, retreat to your outline to pick up where you left off.

If you choose to write out the questions, and experience will reduce that impulse, keep them short with simple language. The more words, the greater the chance for confusion. In examinations for discovery, confusion results in an unusable transcript.

This post is open to all subscribers, but I have attached an example of an outline of part of an examination for discovery of May Donoghue, which paid subscribers can access. It follows the formula that Jordana used in class.

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