One of the most important aspects in conducting a lawsuit is the appearance of witnesses at an examination for discovery, a process where opposing counsel can ask relevant questions about the case. This process is designed to allow both sides in the action to “see both sides of the story,” so to speak, and whether it is worth it to continue to trial or to try to reach a settlement. You are in the best position to provide information to the other side, and it is important you understand your role fully and how to avoid some pitfalls in the process that can harm your case. You won’t win your case at discovery, but you can lose or severely damage it by giving bad answers. Although I will meet with you prior to your appearance at discovery, it is a good idea for you to familiarize yourself with the following points beforehand so that if you have any questions or concerns, we can discuss them ahead of time.
General Considerations
Review key information ahead of time
You are familiar with your case already, but it is always a good idea to review your pleadings and any other key documents so that you are clear as to what was said in these documents. In this way events that may have occurred years ago will be refreshed in your memory. You will want to be clear on the chronology and details of events, which can also be reviewed in depth with your lawyer. Remember that if you can’t remember details during discovery, or you make conflicting statements to what was previously said, the other side will no doubt use this to indicate at trial your story is not to be believed. It will also look very good at discovery if you are seen by the other side as clear and consistent in your story and not to be rattled by the process, which may persuade them settlement is be a better option.
Treat the discovery as if you are appearing at the trial
It is essential that you treat the discovery process as if you are giving testimony in front of a judge or jury, even though the process appears to be much more informal. At discovery, everything you say is recorded by the court reporter and transcripts will be available to the other party. What you say can then be produced at trial and accepted as if you just said it on the stand under oath. As mentioned above, if your story appears contradictory or you are unsure of events, this will be used against you by opposing counsel to attack your credibility on all you say. It is essential for you to maintain your credibility, because if it appears you are being less than truthful it will undermine your position. For this reason opposing counsel will always be on the lookout for even the slightest contradictions in your testimony.
What you should expect at a discovery
Discoveries are conducted rather informally, with no third party judge or mediator present. When you are being discovered, I will be there with you along with the lawyer for the opposing party and possibly a representative from the other party. A court reporter will record all that is said unless specifically asked to keep discussion off the record. For the most part only you and the lawyer for the other party will be speaking, with me available to give you guidance or object to inappropriate questions.
A word of warning about the questioning; the courts have decided that considerable leeway should be given to what can be considered “relevant” to the proceeding, so you should understand the questioning may be far-reaching as long as it can in some way be interpreted as affecting the lawsuit. This may mean that the discovery could take a number of hours to complete, and be an exhausting process. Some leeway for breaks is allowed, but the best way to keep from stretching out the process is to answer each question as clearly and concisely as possible.
Keep in mind always that the better you perform here (and yes, to some extent you are giving a performance so that the other lawyer has some idea as to how well you may perform if the case goes to trial) the stronger your case may appear to the other party. The flipside is that bad answers could severely damage your chance of the case succeeding. Your best chance is to always give the impression of calm assurance and that you won’t be easily shaken or confused by intense questioning. This to a large extent can be achieved by thorough preparation for your appearance at discovery.
Specific Considerations
Tell the truth
You should answer each question honestly and completely, without any embellishment or exaggeration as the goal is to maintain your credibility as much as possible. If you are believable, a judge/jury will be far more motivated to see things in your favour.
Listen carefully to the question asked
You only want to answer the question that was asked, not a question you thought was asked. The best way to do this is to listen to the entire question without interrupting the questioner. Make sure the question is finished before you answer.
If you don’t understand the question, ask for clarification
Never try to answer a question you don’t understand, or if you are unsure that you heard the question correctly – either ask that the question be repeated or ask for it to be clarified. If the opposing lawyer is trying to ask confusing questions to confuse your answers, the quickest way to frustrate that approach is for you to make sure the question is clear and answerable. This does not mean you should try to provoke opposing counsel, just that you have no obligation to try to decipher what questions they are really trying to ask.
Answer only the question that has been asked
Keep it short and to the point. If the other lawyer didn’t ask for information, you are under no obligation to provide it. If the question warrants a “yes” or “no” answer, then answer “yes” or “no” and leave it at that. If the other lawyer likes to pause after your answer, it is human nature to want to continue speaking to fill the silence. Resist that urge – he/she is probably doing it on purpose to see what you will say.
Do not speculate or guess at an answer
If you know the answer to a question, you are under an obligation to answer, but under no circumstances guess or speculate about the answer. If the truth is that you do not know the answer, then say “I don’t know.” You should not make any statements that include phrases such as “might have,” “would have,” “should have” or “could have,” all of which show you are speculating and don’t really know the answer. The end result may be that such vague statements damage the case at trial.
Do not suggest to the other party that you can find out the answer by asking someone else. It is up to me to decide if you should undertake to find the answer through further inquiry.
If you realize a previous answer was incorrect or incomplete, tell me as soon as possible.
If you suddenly realize that an earlier answer was wrong, inaccurate or misleading, you should immediately let me know between questions that you wish to discuss the point in confidence. I can then decide how best to handle the situation.
Focus on the questions, not the lawyer’s strategy
You may become aware that the questioner is trying to confuse you or get you to answer inappropriately. Instead of trying to guess at what the lawyer is trying to do to get an answer, you should be concentrating on the questions and giving truthful answers. If the lawyer suggests something that is misleading or wrong, don’t answer until consulting with me.
Do not become argumentative or lose your temper
The quickest way to damage your own case is to blurt out an answer in anger without thinking. Always keep in mind you want to prove your case and, while you must answer factually, you don’t need to give away other information. If the other lawyer appears to be deliberately making misleading or inaccurate statements in the question to provoke a reaction, you don’t need to answer at all.
Always follow my instructions
If I instruct you not to answer – DO NOT ANSWER – even if you know the answer. I am there in your best interest and will object to questions that are not appropriate. If you continue to answer it not only gives the impression to the other lawyer that you can be goaded into answering improperly, you may in fact relay information that was not asked for by the other party.
Do not be fooled by opposing counsel’s behaviour
Always keep in mind that the lawyer for the other party is testing you for your ability to testify, so a calm and reasoned approach, even if things get heated, makes you look like a capable witness for trial.
If the lawyer is trying to get you to answer quickly (and without thinking) take your time to answer, and if he/she persists you can make the suggestion that he/she is speaking too quickly.
Also remember that many lawyers will be friendly and reasonable while asking questions, because this is the best way to lull you into saying too much. Only answer the question put to you, not the one you anticipate will be asked.
Never say what you are thinking out loud – it will be recorded unless the court reporter is specifically asked to turn off the recording equipment.
Again, if the questions are lengthy and confusing, ask for clarification, and if there are multiple points to address in a question, address every point or ask the lawyer to rephrase the question so you can address every point.
Finally, if the lawyer makes specific reference to a document, read the part of the document before giving the answer so you are completely familiar with the reference being made. Transcripts do not record time taken to consider questions or read documents, so never allow yourself to be hurried or forced to answer immediately.
Conclusion
This document is meant to provide some direction, not give you all of the answers. If anything does not make sense, please discuss it with me before you attend at your examination.
Preparation is the key element here – with preparation you will appear confident and unshakable in your answers. If you appear unsure at this point in your case, all the preparation in the world at trial will not help, as it will appear you have changed your testimony. However, transcripts do not show time taken to carefully consider a question and how to respond, so always listen carefully and answer the best way you can. The bottom line is to express confidence in your case, which is your best weapon in getting to a settlement to your benefit.