Examinations for Discovery #8 - The Non-Responsive Answer

Techniques for when the answer doesn't match the question

In an earlier post or two, we used the Mike Tyson line, “Every boxer’s got a plan until they get punched in the mouth.” But let’s use it again because it applies here.

In the previous seven posts, we prepared for the examination for discovery. Examining your own witness-in-chief is challenging enough. Now, you are examining the opposing party or its choice of witness, not your friendly witness with whom you prepared.

The pleadings and mediation or other information may have armed you with foreknowledge of what the witness will say. Remember the proverb, in Latin, “Praemonitus, praemunitus”. But ‘forewarned’ is only a tiny step towards ‘forearmed’.

In the next few posts, we will discuss how to go with the flow – how to exploit the opportunities that arise and how to react to the inevitable pitfalls.

Let’s start with some of the easiest ones. This post will focus on the most common problem that counsel may – will - encounter at discovery. What happens when the answer does not respond to your question?

There can be several causes for this. The most common is miscommunication. The witness didn’t understand your question. The reason may be fourfold:

• You asked the question poorly.

• The witness is having a bad day.

• The witness is less than articulate.

• The witness is actively trying to be obtuse, uncooperative, or even combative.

We will deal with each seriatim (sorry, I’m on a Latin roll), ‘in order’.