An examination for discovery is a pre-trial process where the plaintiff and the opponent and their respective lawyers meet, often in conference rooms at a law firm or a neutral location set up particularly for this purpose. Both lawyers get the opportunity to examine the party or parties adverse in interest. The process is recorded by a Court Reporter; however, no judge or jury is present at this stage. This pre-trial process allows the lawyers to review the strength and weaknesses of their case. It provides the lawyers with an opportunity to see how the parties will react to the questions and how they will appear in front of a judge and jury during trial. A well-prepared lawyer will benefit from this exercise in a myriad of ways. For example, examinations help lawyers to understand which areas need focus, and how to refine their presentation. Furthermore, since the examination is recorded, the party is committed to their story from the examination onwards. If they change their story during the trial, the lawyer has an opportunity to challenge the credibility of the party.
Use of language
Court officials are usually familiar with legal terminology. The same cannot be said about most parties to a lawsuit. Lawyers are therefore well-advised to avoid technical terminology and to put their questions to the party in plain language. This is particularly important if the examination for discovery is taking place entirely in writing, which is an option the examining lawyers can choose. In this situation, the lawyer cannot clarify any ambiguities of their questions but must draft them with additional care.
Framework of questions
It is helpful to prepare the questions in a manner where one precedes the other. Following a simple pattern of questioning can help with the ongoing discovery. The key component is to develop a strategy that will determine what to ask next. It is also helpful for the examined party to be guided through a comprehensive narrative by the questions. Often a chronological order in asking about past events is advisable.
It is recommendable to be concise and clear with your questions when questioning a party. Accurate questioning is more likely to induce succinct and informative responses.
The lawyer must also keep in mind that only relevant questions are permitted at the discovery. Relevant means that the question must relate to any matter in issue in the proceeding as raised by the pleadings and particulars. Consequently, the lawyer must be familiar with all pleadings in the action in order to avoid disruptive but legitimate objections from the opposing lawyer.
When one’s own client or witness is examined by the opposing lawyer, communication with the client or witness is prohibited by the rule 5.4-2 of the Rules of Professional Conduct. It is therefore imperative to prepare one’s own client and witnesses in advance of the examination for discovery.
Provoking with facts
To be factually correct when presenting a case is important. There is a difference between investigating facts associated with the testimony and coercing a witness into giving an answer. Nevertheless, leading questions are explicitly permitted when examining the opposing party. Yet, questioning should be ceased when all of the information required for the case has been attained.
By applying these simple techniques, lawyers can make the most of an examination. If the examination does not go as planned, it is an opportunity to make note of all the challenges and work on them before the actual trial.
The Law Society of Ontario provides a guide for an Examination for Discovery with further helpful details.