Examinations for Discovery #9 - Dealing with Interventions by Counsel

How and when to stick to your guns

There’s never a traffic cop when you need one! This complaint really applies to examinations for discovery. Why? Because they don’t take place in court with a judge or master serving as referee. True, there is a transcript available. But motions are costly and take forever in many places. Most times, one side either wants the case to take forever or doesn’t care one way or t’other, so delay is rarely impartial.

I am familiar with the rules of civil procedure in Ontario, Canada and am aware that these differ from place to place. But bullying doesn’t. Whether brought about by gender, experience, ignorance or just attitude, it is common for counsel to intervene aggressively when they shouldn’t. This post will discuss how to deal with that unfortunate situation.

There are several strategies that counsel can employ, depending on both the situation and whose witness is testifying.

Case #1: Suppose Counsel A examines Witness W, counsel for the witness. In that case, Counsel B should stay silent unless there are grounds for an objection or Counsel A asks Counsel B a question, perhaps to clarify a position or pleading or to request a document. Anything else may well be an inappropriate intervention.

Case #2: On the other side of the counsel table, however, Counsel A may bully the witness or prevent Counsel B from making legitimate statements on the record, such as when Counsel A misstates a reference or quotation, repeats a question, or asks a question improperly.

Let’s start with Case #1. You are examining the witness when Counsel B pipes up. Often, Counsel B tries to answer the question. Of course, most lawyers feel they know the answers better than their witnesses do. But you are examining the witness, not the lawyer. You have the right to receive the witness’s answer and don’t have to accept the carefully spun reply from the lawyer. In some jurisdictions, the witness is deemed to have given the answer the lawyer made, but that is hardly satisfying if you genuinely want the witness’s take. Further, the interruption by Counsel B robs you of your momentum. If you are in cross-examination mode, you genuinely want the witness to accept each of your propositions. In order. With one-word answers. That’s your plan, and Counsel B is interfering.

Here are several tactics for you to consider as Counsel A.