March 26, 2024

By Jonathon Clark 

Now that we know what an examination for discovery is, it is time to talk in greater detail about how the examination unfolds and provide you some guidance about how to behave at your discovery.

This article is based on a standard memo we provide clients to help them prepare for discovery. We typically present it to them at the preparation meeting.

At the discovery, you and your lawyer sit on one side of a table and a lawyer for the opposite party sits across from you. A court reporter will be present to take down what is said. The opposing party may or may not be present in the room while you are being examined, but generally speaking the opposing side chooses not to be present.

Your Examination has several purposes:

1. to explore the evidence or testimony which you are likely to present at Trial if the case goes that far;
2. to obtain admissions from you that may be useful to the opposing party’s case;
3. to assess your reliability and demeanor as a Witness; and
4. to define and narrow the issues in dispute to assist settlement.

Your Examination is principally for the benefit of the opposing party, whose lawyer will put questions to you. You are obliged to answer these unless your own lawyer objects to a particular question or questions.

Do not be concerned if your own lawyer is not continuously participating in the examination. There may be no reason to object or interrupt. Your lawyer has a right of re-examination when the other lawyer has finished in order to clarify or enlarge your previous answers, if necessary.

Your lawyer should meet with you before the Examination to discuss the obvious points to be covered. Since your lawyer cannot predict every question that you will be asked, they will not attempt to create a “script” for you. You may expect to be asked to review key documents to refresh your memory and be ready to answer questions based on the documents.

It helps if you have the right attitude and method on the Examination so that you can handle any question with ease. We find the following points to be the most important general advice as to how to approach your examination:

1. Listen carefully to each question. Wait until the question is completed before you answer it.
2. Answer only the question that is asked; DON’T volunteer extra information, or guess or speculate – you have no obligation to do so.
3. Answer truthfully and accurately. If you don’t know the answer, or don’t remember, say so –there’s nothing wrong with that.
4. DON’T answer any question unless you fully understand it.
5. DON’T argue.
6. DON’T try to “sell “yourself or the justice of your case.
7. DON’T be concerned if the whole story is not coming out. That’s not your problem. Do let the scope of the Examination simply be determined by the questions put to you.
8. Always TELL THE TRUTH. If you always tell the truth after carefully listening to the questions, you do not need to worry about your credibility.

The examination for discovery is an important stage in a lawsuit. You are better off represented at discovery by serious lawyers. At Weilers LLP we are serious about each client’s case and bring our experience and knowledge to the examinations to advance your case.

We are not afraid of hard cases. We like a challenge. If you value efficiency and effectiveness, Weilers LLP may be the right lawyers for you.