Purpose of the Examination for Discovery
The solicitor conducting the Examination is given an opportunity to discover the facts upon which his opponent relies as the basis for his case.
The lawyer conducting the Examination will have an opportunity to obtain admissions which will help prove his case and can be used against the other party at trial.
The solicitor conducting the Examination will obtain the witness' knowledge of the case to eliminate the element of surprise at trial and assist him in his preparation.
Preparation for Examination for Discovery
We will schedule an appointment to meet in our office prior to the Examination for Discovery to review your case. In order to assist you we will try to anticipate the questions which the opposing solicitor may ask you on the Examination. It is vitally important to be well prepared for this Examination and therefor, you must allow yourself ample time to become familiar with all the facts and records upon which you will be examined.
Suggested Guidelines for your Examination for Discovery
Please keep in mind that your Examination for Discovery is conducted for the benefit of your opponent. The opposing solicitor will do his best to obtain answers from you which help his case. He may embark upon a "fishing expedition" to obtain all the information he requires. According to the Rules it is permissible to ask almost any question that is not deemed entirely irrelevant. If you say something at trial which is different from your evidence on the Examination for Discovery, you will likely be faced with this inconsistency when questioned by the opposing solicitor at trial. There are a number of simple guidelines which should assist you during your Examination for Discovery:
- Listen to the question carefully and pause before answering it. Do not rush. Take all the time you need to collect your thoughts. This gives your counsel an opportunity to object to the question if it is improper. Answer the question – no more and no less. Do not provide options. Do not open up lines of questioning. Do not speculate or guess. Do not give examples to illustrate your answers.
- If your counsel objects to a question, do not answer it unless told to do so even if you disagree with the objection A question will not be objected to unless it is improper or irrelevant. Please keep in mind that we have nothing to hide and do not wish to convey the impression that your counsel is trying to protect you during the Examination.
- If you do not understand the question being asked, indicate such and it will be rephrased or repeated.
- If you do not know the answer or cannot remember, say so. Do not guess. You are not expected to have total recall. You should have knowledge of the central issues in the case. However, additional information requested on the discovery can be provided to the opposing solicitor at a later date.
- Be concise. Do not ramble. You will not convince the opposing solicitor that you are correct in this case. Recognize that no case is perfect, otherwise, there would likely be no litigation. If a question obviously requires an admission against interest, admit it freely. It is better to get it over with and out on the table. In this way you will do more to persuade the opposing solicitor that you are a candid and convincing witness.
- Do not attempt to anticipate the lawyer's line of questioning.
- Do not argue with the opposing counsel.
- If you are being questioned about a document or record, always have the material put in front of you for reference.
- Do not turn to your counsel and ask if you should answer a question. Your counsel will object if it is necessary; otherwise you must proceed to answer all the questions being asked of you.
- Do not exaggerate the facts either intentionally or involuntarily.
- Most lawyers who are examining are pleasant and courteous and generally try to make you feel comfortable. Always remember that the opposing lawyer acts in the best interest of the other party. In spite of his friendliness and affable manner he is always acting for the opposing party.
- Never resort to humour during the Examination for Discovery, even if there is a discussion which is "off the record". It never pays to indulge in such a luxury. An Examination for Discovery is a serious proceeding and if you appear frivolous or facetious, you will give the impression that you are not serious about your testimony.
- Prior to the Examination for Discovery please ensure that you have reviewed and understood the Notice of appeal, the Reply and the Answer if there is one.
- Finally, beware of the "catch-all" question. You may be asked the following questions: "Do you know anything more about this action which you have not mentioned?" or "Is there any further information you wish to provide?" The most appropriate response to a question of this nature is "There is nothing further that I can recall at this time."
The foregoing is intended as a general summary to assist you with the preparation of your Examination for Discovery. If you have any further questions about the particular facts of your case, or the procedure in general, please make a note of them to discuss during our preparatory meeting.
