The Ten Commandments of Conducting an Effective Examination for Discovery

by Shelley Bentley

At a recent joint meeting of the Civil Litigation and the Young Lawyers Subsections, James P. Taylor, QC outlined his “ten commandments” for effective Examination for Discovery.

1. Prepare Thoroughly
Effective examination for discovery requires thorough planning and preparation. Mr. Taylor emphasized the necessity of having the Discovery clearly organized in the lawyer’s mind. However, he cautioned against being too rigid and formalistic in preparation. In particular, he does not believe that it is necessary to write out each question in advance because this can limit a lawyer’s ability to deal with new and important issues as they arise.

A. Order of Issues
However, the order of issues should be decided in advance. The most common ways of ordering Discoveries are; by issue, chronologically; or through the use of the “jumping technique.” The latter technique involves dealing with a portion of an issue and then moving on to another issue and returning later to deal with the remainder of the issue. By jumping around, the witness is prevented from anticipating and preparing for difficult questions.

B. Housekeeping
Examinations for Discovery have certain housekeeping functions. For example, they should be used to reach agreements with opposing counsel and the witness about the authenticity of documents, etc.

C. Points Raised in Pleadings
All points raised in the pleadings should be covered in the Examination for Discovery.

Mr. Taylor believes it is appropriate to put a copy of the pleadings to the witness and ask questions for clarification. A party is entitled to ask an opposing witness what facts he or she relies upon in support of his or her case. So it is important to discuss the pleadings with a client before attending a Discovery. In the event that a client is unsure of the specific import of various sections in the pleadings, it is appropriate to instruct a client to answer on Discovery “I don’t understand what that means. My lawyer prepared this document.” Conversely, Mr. Taylor believes it is an effective strategy to ask “What facts do you rely on to establish this portion of your claim?” Sometimes this question has the effect of encouraging a witness to volunteer information.

D. Format Questions
Lawyers should use “format questions” and write them out. They should make notes about what they need to ask about any given issue in an action and have copies of these notes available. In this way, if the lawyer is examining on another issue and the first issue crops up, the lawyer will have a copy of the notes dealing with the first issue to jog his or her memory.

E. Precedent Letters
Mr. Taylor recommended that lawyers use certain types of precedents to prepare for a Discovery. For example, he sends out letters to clients to explain the Discovery process. This ensures that all clients receive the minimum information they need in order to give evidence at a Discovery.

2. Employ Strategies
Think about possible strategies to employ. Strategic decisions require a determination of what questions should be asked on the Discovery and what questions should wait until the trial. There are some pieces of evidence which should not be tested on Discovery because such questions may announce to opposing counsel and the witness the strengths of your case early enough to allow them time to weaken your case. One should also avoid asking the wrong questions on Discovery. One question too many can neutralize an admission if it elicits a damaging answer.

Another concern is whether the examining lawyer regards the witness as being a party or a witness. This decision will have an impact upon the way in which the Discovery proceeds. For example, if the lawyer regards the witness being examined as merely a witness, the lawyer may attempt to be much more friendly, informal and conversational in his or her approach than if treating the witness as a party. There are a number of circumstances in which informality and friendliness can be devastating Discovery tools.

3. Do Not Cross-Examine
Examination for discovery is not a cross-examination. While Mr. Taylor says it is true that lawyers may ask leading questions during Discoveries, it is generally better to ask open-ended questions that cause a witness to talk freely. Mr. Taylor firmly believes that the most effective lawyers are able to convince opposing witnesses that they are “nice” people. He observed that some witnesses love to talk, and an examining lawyer should always allow them to do so. Often the information volunteered opens up avenues that the lawyer had not even considered.

Another point to remember: If the evidence provided by a witness is clearly false, do not attempt to challenge a witness’s credibility on Discovery. It is often much more effective to encourage a witness to continue exaggerating or telling as many lies as possible because at trial the lawyer can then confront the witness with all of this Discovery evidence. If a lawyer challenges a witness’ credibility during discovery this will give the witness time in the months leading up to trial to devise ways of qualifying the discovery evidence.

4. Display a Love of Detail
Effective examination for discovery requires a love of detail. The best detail is the detail that comes from logical presentation. For example, if Mr. Taylor were examining someone at the subsection meeting about the meeting itself he would ask:

How did you get to the meeting? When did you arrive at the meeting? Where was the meeting held? What was the scheduled time? After arriving what did you see in the room? What was the configuration of the room? Were there any other people present?

Often the most useful information arises from apparently mundane and innocuous questions relating to detail.

5. Be Clear
Things that may seem clear in a face-to-face interaction may have quite a different complexion in the pages of a transcript. Consequently it is important to ensure that everything is spelled out clearly in the transcript; people’s full names, dates, times and other identifying details.

6. Do Not Argue With Objections; Record Them
Mr. Taylor gave some advice about how to deal with counsel who behave inappropriately during a Discovery. He gave an example of a Discovery he attended with his client many years ago. At one point during the Discovery opposing counsel went off the record and leaned over the table to physically threaten Mr. Taylor’s client. Opposing counsel then went back on the record and continued with the Discovery. Mr. Taylor was so taken aback that he did not know how to respond at the time. His client had clearly been shaken by the outburst. A few minutes later opposing counsel did the same thing again. Mr. Taylor then adjourned the Discovery. Mr. Taylor now believes that he should have immediately stated for the record that opposing counsel had made the statement or threat and then adjourned the Discovery.

Lawyers should advise their clients to fall silent immediately if their own lawyer starts to talk. There are many examples of a witness who gave a damaging answer without waiting for his or her counsel to make a full objection.

Mr. Taylor believes that it is improper to argue with opposing counsel over an objection. He suggests that lawyers simply give sufficient explanation to foreclose any possibility that a judge would find an objection unwarranted. Sometimes, however, a reasonable discussion between counsel about an objection can convince opposing counsel that the objection is unwarranted. Civility is the rule of the day. Similarly lawyers should never make false threats during a Discovery. If a lawyer threatens to bring an application to compel an answer to a question, the lawyer must then bring that application. Finally lawyers should be consistent in their objections.

7. Get Details, Not Conclusions, From Witnesses
Details are persuasive. For example, if a witness recalls a person being inebriated, it is much more effective for that witness to state that the person was staggering around, red in the face, slurring words, glassy-eyed and speaking in an extremely loud tone than to say the person was “drunk.”

8. Lead Witnesses Only When Absolutely Necessary
Leading a witness has the possibility of destroying the effectiveness of an answer.

9. Be Conscious Of Opposing Counsel’s Skill Level
If a lawyer inadvertently receives correspondence between opposing counsel and his or her client which is clearly protected by privilege, the only appropriate thing to do is to destroy this correspondence. However, if a lawyer or his/her client overhears a conversation between opposing counsel and his/her client, this is good evidence and may be used against the opposing party.

10. Beware Of Diluting A Witness’ Answers
Difficult witnesses can dilute their answers with qualifications and spurious explanations. Whenever admissions are read into the record at trial, Judges always refer to the questions previous to and following the admission. Therefore, if a lawyer manages to get an admission out of a witness it is always prudent to make a note of the admission and revisit it at a later point in the Discovery in order to sandwich it within two relatively innocuous and unrelated questions.

What is the Duty of a Lawyer in Drafting a Client’s Will?
Maureen Lundell of Harper Grey Easton commented on the case of Hickson v. Wilhelm, (1997) S.J. No. 343, No.554 and No. 727 (Sask. Q.B.) During a recent meeting of the Vancouver Wills and Trusts Subsection. In this case there were two separate actions; the North Battleford action and the Saskatoon action. The pleadings were almost identical but the North Battleford action included an additional lawyer, Osborne, as a defendant.

Facts
The plaintiff, Hickson, was the testator’s employee. The defendants, Osborne and Wilhelm, were the lawyers retained by the testator. The testator retained the defendant Osborne in 1976 to incorporate a farming operation. Some of the testator’s assets including farm land were transferred to the corporation, although the testator retained bare legal title to the land. He later executed a Will drafted by the defendant lawyer Wilhelm who was a member of the law firm that incorporated the farm. The testator left the land to Hickson and other plaintiffs in the Will. The testator died and the land bequests failed because the corporation owned the land despite the fact that it remained registered in the testator’s name. The land was sold and the proceeds were distributed to the residual beneficiaries of the Will. Hickson and the other plaintiffs did not receive any of the proceeds. They argued that both Osborne and Wilhelm were negligent in causing their failure to receive the land. The defendants argued that the testator/estate was contributorily negligent.

Decisions
In the North Battleford action the Court dismissed the action finding that there was no sufficient relationship of proximity between the plaintiffs and Osborne such that the defendant should have reasonably contemplated that carelessness on his part with respect to advice given regarding the incorporation and related transfers of property could cause damage to future beneficiaries of an estate. This decision was not appealed.

In the Saskatoon action the Court found that the defendant solicitor who had prepared the Will was negligent in that he did not meet “the requirement for due diligence in this case with the result that the role and involvement of the corporation in the ownership of the farm assets was not identified and the bequests of land to the plaintiff as expressed in the Will were ineffectual and failed.”

The Court concluded that the testator bore a degree of responsibility for the instructions which he gave to the lawyer. While that does not release a lawyer from responsibility to ensure that the instructions are complete, the Court attributed twenty-five percent of the liability for the losses incurred by the plaintiffs to the testator. This decision is under appeal.

Conclusion
Maureen Lundell commented that the finding of contributory negligence on the part of the testator was extremely unusual and will likely take a special set of circumstances to warrant a similar finding in the future. This case highlights the responsibility of lawyers for failed gifts in circumstances where the intentions of the testator were clear. A lawyer’s duty goes far beyond simple order-taking. A lawyer is responsible for ensuring that the wishes of the testator are effected.

This article originally appeared in the April 1998 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.