Preparing a Client for an Examination For Discovery

Some advocacy tips to think about: preparing the client for his examination for discovery

At Quinn Thiele Mineault Grodzki LLP we recognize the need for continued study and keeping up with developments in the law. Over time, the law changes either through the passage of new laws by Parliament, the provincial legislatures or through the interpretation of law by the Courts. Keeping up with these developments is critical to QTMG's success in representing you, the victim.

Unless you are a lawyer or a sophisticated litigant, you may have never heard about an "examination for discovery". So what is it? The examination for discovery is a legal proceeding which takes place once the parties to an action have filed and delivered their pleadings (a statement of claim and statement of defence) and once the parties have exchanged their Affidavit of Documents (an Affidavit of Document is a compendium consisting of a party's known evidence).

The examination allows the parties to a civil action to examine, under oath, the opposing party orally before trial. The goal the examination is to obtain the disclosure of important facts from the other party and to highlight, if any, the issues that may be in dispute in the litigation.

The examination for discovery also serves the purpose of obtaining admissions from the examined party and evaluating the probative value of its evidence. If admissions are obtained at the examination, they can be used at trial to chip away witness credibility by demonstrating contradictions or inaccuracies between a witness testimony in court and prior statements made by the witness during the examination for discovery or made in prior statements, with the goal of ultimately impeaching the witness. It becomes therefore necessary for the lawyer to defend his client's position.

A weak performance by the witness at his examination for discovery or a terrible answer provided in response to a question can seriously damage the client credibility and ultimately, his claim. Claims are not won at examination for discovery, but they can be lost. Lawyers should ensure that they spend sufficient face to face time preparing their clients to testify. There is simply no substitute for face to face preparation time. Sending your client home with a pile of documents will not allow him or her to be properly prepared to answer questions. As such, the lawyer and the client should always make time in their schedule to prep for the examination.

The client should always be put through a mock examination as a means to familiarize him with the procedure and the types of questions that will be asked. This practice session will permit the client to experience the questions that may be asked of him and understand the manner in which he will have to respond to those questions in order to provide his best evidence.

Accordingly, here are some basis tips for preparing your client:

  • Carefully explain the nature of the proceeding to your client. Explain who will be present (i.e., the lawyers, the court reporter). Explain that the witness will be swearing an oath (on the bible or affirmation to say the truth and nothing but the truth). Explain to the client who will be asking the questions and what types of questions will be asked (questions relevant to any matter in issue in the action). It is important to inform the client that, if necessary, you can object to a question for the record, but that he will have to answer the question except in rare cases where you will instruct him not to answer;
  • During the examination preparation, counsel and the witness should review all important documents and all prior statements provided by the client. The answers provided by the client during the examination must be consistent with prior statements.
  • Stage a mock examination with a question and answer segment. Prepare your client to answer the 5 Ws (what, when, where, who, why) related to their claim;
  • Prepare your client to face embarrassing questions such as, past medical conditions, use of alcohol, use of drugs, use of medication, loss of libido, etc.;
  • Explain to your client that the best answer at an examination is a short answer. Don't let your client get caught up in the heat of the moment and attempt to justify, explain or speculate. Counsel should train his client in providing short and truthful answers;
  • Advise your client to answer the questions briefly and directly. Counsel should advise his client not to volunteer information not solicited by the question. Counsel should explain to his client that often, the best answer is: yes, no, I don't know.
  • Counsel should never let his client guess an answer. If the witness does not know the answer to a question, he should state so. Counsel should tell his client to answer a question to which he does not know the answer;
  • Carefully explain the client that that one of the goals of the examination is to provided to the opposing counsel an opportunity to learn about the witness and his claim. Explain to your client that if the opposing counsel does not do a very good job, if he does not ask the right questions, this is not our problem. Explain to the client that during the examination is role is to answer the opposing lawyer's questions. The client's role is not to: a) justify answers; b) persuade the other opposition; c) argue with the opposing counsel; and d) tell his entire life story. Accordingly, counsel should prepare his client so that he does not fall in any of those traps

Counsels who abide by these tips will permit their client's to feel less stressed by the upcoming experience and remain calm under the pressure of the examination. The client will be prepared to answer the questions in a manner which promotes his the success of his claim and avoid the traps set up by the opposing counsel. After all, cases are not won at the examination, but they can be lost.

Quinn Thiele Mineault Grodzki LLP
PERSONAL INJURY LAWYERS,
OTTAWA, ONTARIO, CANADA

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