The New Litigators Guide: Your First Discovery
I am going to focus on preparing yourself as examiner for discovery. You will also need to prepare your client, but that is another article. Here’s how I go about preparing for a discovery.
1. LEARN THE CASE
You have one advantage over more senior lawyers: your time is less valuable. You can, and should, spend far more time preparing for a discovery then a senior lawyer ever would. Senior lawyers will probably know the law better than you. But with time on your side, you can know the facts better than a senior lawyer. In that vein, be the most prepared person in the room.
2. KNOW THE RULES
Refresh yourself by reading Rule 31 and 34 of the Rules of Civil Procedure, preferably an annotated hard copy like Ontario Annual Practice, which contains summaries of cases interpreting the Rules. Bring the Rules with you until you know them by heart.
3. PREPARE YOUR QUESTIONS AND UNDERTAKING REQUESTS
a. Use precedents. Every litigator has a document containing their discovery questions. You can and should ask multiple lawyers for their discovery questions. Another excellent source is transcripts – check with law clerks to see if your firm has any.
b. Create your own list of questions out of your precedents.
c. Organize your questions by category.
d. Keep your questions short and keep legalese out of it.
e. Asking questions chronologically will help the witness recall evidence.
f. Asking non-leading questions will produce admissions that are more fulsome.
g. You don’t need to ask every question imaginable. You need to ask the relevant questions you don’t know the answers to, to ensure there will not be a surprise waiting for you at trial.
h. You also need to prepare a list of documents that haven’t been produced to request as undertakings, and a list of potential witnesses that you would like the names and addresses of.
3. DAY OF DISCOVERY – DOS AND DO NOTS
“Do” Be Friendly to Counsel. You know we have a duty to be civil, but I’m going to suggest you be downright amicable. You are in an adversarial situation, but you are not your client. Establishing rapport now will make negotiating easier down the line.
“Do” Be Respectful to the Witness. Witnesses expect the worst of the lawyer examining them. Prove them wrong. Once they realize you are not going to antagonize them, their answers often become more fulsome and responsive. Empathy will get you more than accusation.
Do Not Argue the Law. That’s what we do in Court, not in Discovery. There’s no point going back and forth with Counsel on their position on the record – get their position and move on.
Do Not Cross-Examine. You are allowed to, but should you? I don’t think so. I like the advice given in Ontario Annual Practice’s preface to Rule 31;
The examiner is there to elicit facts and obtain admissions where available – not to demonstrate skill as a cross-examiner. The opposite party should have its first lesson in facing cross-examination, at least by yourself, at the trial.
Do Not Waste Time. Make efficient use of discovery time by being prepared and knowing exactly what you need to ask. You have seven hours, not including breaks. I have yet to see a seven hour discovery where at the end I thought “yes, that was a very good use of all of our time.”
In motor vehicle accident cases, typically examining the defendant will take an hour or less. A thorough examination of a plaintiff who is responsive can easily be done in less than four hours. The more time you spend preparing, the less time you will need with the witness.
4. FAQs ON DISCOVERIES
a. What do I do if the witness does not show up?
Wait 15 to 20 minutes past the scheduled start time. Then you can ask the Court Reporter for a Certificate of Non-Attendance. You’ll need to have your Notice of Examination and Affidavit of Service handy to prove the witness had notice of the examination.
Eventually, you can bring a motion under Rule 34.15 to compel attendance. Try for a second agreed upon date first. Technically, you can move to dismiss the claim/strike the defence, but this is rarely granted unless you can demonstrate the witness was being contumelious or that your client is suffering prejudice.
b. What is improper conduct on an examination?
Rule 34.14 addresses improper conduct, which includes;
– Abusing right to examine with excess of improper questions;
– Interfering with right to examine with excess of improper interruptions;
– Conducting an examination in bad faith;
– Conducting an examination in an unreasonable manner to annoy, embarrass, or oppress the witness;
– The witness’s answers are evasive, unresponsive, or unduly lengthy
The remedy for improper conduct on an examination is to adjourn the examination and seek direction from the Court on how to proceed. The Court will decide whether the conduct was improper and if so, give an Order with respect to its continuation, scope, or termination. Do not do so unless you are fairly confident you will be successful. If the Court finds you adjourned the examination without improper conduct, Rule 34.14(2)(b) permits the Court to order costs personally and immediately for the motion, costs thrown away, and costs of any continuation of the examination.
c. Who pays the Court Reporter?
The examining party pays the Court Reporter. If more than one party examines, the cost is split.
d. Counsel served me with documents at the discovery. What do I do?
We have all had it happen before: the witness will bring documents no one has seen before. Put it on the record what the witness brought to the discovery and indicate if you are not waiving your right to a re-examination if you have further questions arising from your review of these documents.
e. What if I have more questions?
Discoveries are, technically, a one-time deal. Be methodical. This may be your only shot. However, if your questions arise from fulfillment of undertakings (answers or documents you did not have at the first discovery), you may be able to get an order for a re-examination. As a result, your closing comment at all discoveries will be the same: “Subject to any questions which may arise from the undertakings given today, those are all my questions.”
This piece is part of an ongoing series of blogs by Erin Murray, The New Litigators Guide.
To access all of the blogs as they are posted, please click here and bookmark this link.
