.. HOW TO PREPARE YOUR WITNESS FOR AN EXAMINATION FOR DISCOVERY

Transcription

1 .. HOW TO PREPARE YOUR WITNESS FOR AN EXAMINATION FOR DISCOVERY )., The~ematerialswerepreparedby Murray Hinds, of Woloshyn & Company law firm Saskatoon,.Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar, Maximizing Opportunities: Using Examinations for Discovery Effectively; May 2004~

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3 How To Prepare Your Witness For An Examination For Discovery. The oral examination for discovery of your witness is a critical step along the lengthy and costly path of a civil action. Handled ineffectively, your witness will likely find the examination for discovery to be a very unpleasant experience In addition, your client's legal action can be stalled or in ruins. Handled effectively, your witness will present as credible, knowledgeable and a reliable source of information. Following the successful discovery, your client is a step closer to concluding the litigation. No one involved in a legal action likes to be unprepared for what lies ahead. Most witnesses in civil actions are unfamiliar. with the procedure and purpose of an examination for discovery. Your witness is very likely a bit nervous about the discovery and unclear about what is expected of them. This paper will provide some practical advice as to how you can prepare your witness to be a more effective witness in an examination for discovery. Basics Once the pleadings are closed and discovery and inspection of documents has taken place counsel is in a position to conduct an oral examination for discovery. Normally, counsel agree upon the date(s) for examination for discovery well in advance of the same. The time leading up to discovery should be used wisely. Obviously time must be set aside for counsel to adequately prepare for their own discovery of the opposite side. In addition, time should be set aside to properly prepare your witness for their discovery. Prepare Yourself. A good start to'preparing your witness, is to conduct a refresher of Queen's Bench Rules govern examinations for discovery. Make sure you are familiar with the rules.

4 2 Review the Pleadings When was the last time you examined the pleadings? Now is the time. The pleadings are the framework around which the discovery will take place. Once you have reviewed the pleadings, your next step will be to review the pleadings with the witness. Ensure your witness fully understands the statement of claim, the statement of defence and any other pleadings including a demand for particulars and reply to particulars. Advise the client that questions may be asked as to the facts supporting the allegations set out in the claim, defence orreply to particulars. Review the Documents When you are preparing your client's Statement of Documents it is often worthwhile to "annotate" these documents for your own purposes. This involves a brief notation to yourself as to the significance of the document and how it fits into the action. Identify those documents which are critical to your case and which you wish to put to the other side. Have your witness (client) confirm your understanding ofthe significance ofthese documents. You will also want to identify those documents which may weaken or take away from your client's case. You will need to thoroughly familiarize your client/witness with these documents prior to the discovery. You must assume that sooner or later opposite counsel will focus upon these documents and ask pointed questions about them. Read the documents carefully. Ask yourself and the witness "What, if anything can be said about the document?" "Does another document or event help fully explain the document?" Make sure you conduct a review of all of your client's documents and the opposite sides documents. Once you have reviewed all of the documents, your next step will be to review the important documents with your witness. During or after a review of the documents with your client, always take a moment to ask your client if there are any additional documents which they are aware of. It is not unusual to find out that additional documents exist that are relevant to the l?roceedings.

5 3 Who Is Your Witness? Get To Know Them, Before Your Prepare Them. If your client is a partnership, corporation or the Crown you will need to consult with your client to identify the proper officer to be examined on its behalf. Once you have determined who is being proposed to be examined on behalf of your client, ensure that person is aware that they are bound to make a reasonable effort to inform themselves on all matters which are material to the issues and to impart such information on the examination. Make sure such a witness is up to the task and that your client provides them with the time and resources to properly prepare themselves. Before you are in a position to prepare your witness you must know who you are dealing with. Make sure you know your witness. Are there any special considerations to be aware of prior to their testimony? Does the witness have to travel a great distance to meet with you or attend at the discovery? Does the witness have enough time to adequately prepare for the examination. What is their age? Where do they live? What is their family situation? What is their level of education, reading comprehension, work and world experience? What is their present health condition? Are they on any medications or have a health condition which may affect their memory or ability to testify at the discovery? You need to know. Explain What An Examination For Discovery Is And What It Is Not. An examination for discovery is an opportunity for each lawyer to obtain information from the otherside which the lawyerbelieves to be important. It is your job to ensure that your client and witness understand the nature of examination for discovery and the roles of everyone in attendance. Early on advise the client that following mandatory mediation, exchange and inspection of documents an examination for discovery will take place. Impress upon your client that the examination is being conducted for the benefit of the other party. Advise the client this is not a trial and that no judge will be present. While the discovery may seem relatively informal, it is an official part of the legal action.

6 4 Suggested Topics To Review With A Discovery Witness You may wish to explain the examination for discovery as follows: An examination for discovery is an official step in the lawsuit in which you are a witness who is required to answer questions under oath by the lawyer representing (the other side). Your job is to tell the truth and answer the questions which are asked of you. If I think a question asked of you is improper I will interrupt and object to the question. Follow my instructions as to whether or not to answer the question. Every question asked and every answer you give will be recorded and later set out in a type written transcript that can be used in court. The examination for discovery will takes place on _day, 200_ at (one of lawyer's offices or court reporter's office) beginning at 10:00 a.m. The discovery of you may last one hour, a few hours or several days, depending on how complex the case is. Generally, you will have to remain until the other side's lawyer has asked all his or her questions. You can take some breaks from the examination for example to clear your head or use the washroom. In most cases only a few people will be present at the discovery. I will be there with you along with the lawyer representing the other side, the person on the other side and the court reporter. The lawyer who will be asking questions of you also has a job to do. He or she will ask you about your version of the facts of the case and confirm those facts on the record. The lawyer representing the other side will also attempt to get you to admit to certain facts which may assist his client's case or weaken your case. In addition, the lawyer representing the other side will make sure that you and I provide all of the relevant documents respecting the lawsuit. You can also expect that that the lawyer asking questions of you will be assessing you as to what kind of witness you would make if the matter proceeds to trial and sizing up the strength of your overall case. Ifyou don't understand question or you are unable to answer a specific question put to you at the discovery, just say so. If you are in a position to provide the answer after the discovery I may

7 5 agree to have you undertake to provide a written response to the question. instructions to you respecting such undertakings. Follow my Remember, An Examination for Discovery Is Not: -Your day in court to testify about the things that you want to testify about. That comes at the trial. -The time for you to argue with the other side's lawyer that your case is right. -The time for me to argue your case for you. I will now review seven simple rules for you to keep in mind throughout a discovery. [see schedule "A" handout to client] Seven Simple Rules on Being a Discovery Witness What follows is some simple rules for your witness to keep in mind throughout a discovery. 1. ALWAYS TELL THE TRUTH Advise your witness that the examination for discovery is an official part of the lawsuit and that they will be administered an oath to tell the truth prior to testifying. Any testimony that is not truthful can result in a criminal charge of perjury. In addition, testimony that is not truthful will likely be exposed at trial and hurt the credibilityof your client. 2. LISTEN TO THE QUESTION, THEN SPEAK CLEARLY Advise your witness that they should listen to each question as it is asked and to take enough time to think about the question before responding it. The examination will take some time to complete, ask your witness to be patient, there is no prize for anticipating questions or providing a quick answer.

8 6 Remind your witness that a court reporter will be recording the questions and answers. Advise your witness that a clear verbal answer is required for each question. A nod, shake of the head, uh-huh or mm-mm response lacks any clarity. 3. IF YOU CAN ANSWER A QUESTION, DO SO Your client is obliged to answer the questions put to them, excepting those questions that you objectto. Advise your clientnot to be evasive. Honest and direct answers are best. 4. ANSWER THE QUESTION YOU HAVE BEEN ASKED While your client should provide honest and direct answers remind them to be as complete and brief as possible. Answer the question that has been asked and nothing more. There is no need to volunteer information. 5. DO NOT GUESS AT AN ANSWER Advise your witness to not to guess at an answer. If the witness does not know the answer to the question, they should simply say so. Remind the witness that if they do not know the answer to question but are capable of determining the answer, this can always be accomplished by way of an undertaking. 6. IF YOU DON'T UNDERSTAND A QUESTION OR NEED IT REPHRASED SPEAK UP AND SAY SO. Advise your client not to answer a question that they do not understand. Sometimes questions are not clearly worded. Have your witness advise the other lawyer when they do not understand a question. Usually the question can be rephrased. 7. IF YOUR LAWYER ADVISES YOU NOT TO ANSWER QUESTION, TAKE YOUR LAWYER'S ADVICE. Remind the witness that their job is to answer questions that have been put to them. Advise the witness that your job is to consider whether or not the question is appropriate and fair..tell the witness you will be there for them, as needed. Remind the witness not to answer questions that you object to, or wish to take under advisement. [ see Schedule "B" handout]

9 7 General Points for Preparing Your Witness Many witnesses have difficulties accurately remembering the chronology of events. One means of assisting your client in this regard is to prepare a time line of relevant events which the witness agrees with and is familiar with. A mock examination for discovery can be a useful exercise on specific questions that are anticipated from counsel from the other side. Go over the response with the witness. Is the response truthful, accurate and complete? Can the answer be improved upon? If the witness is a proper officer being examined on behalf of a partnership, corporation or the Crown insist that the witness informs himself or herself as to matters that may not be within personal knowledge. This also holds true for other witnesses. Consider showing the witness a sample examination for discovery transcript from past proceedings. Use the transcript to illustrate how selectively a witness's answers may be used by counsel for the other side at trial. The examination for discovery permits a searching and thorough cross examination of the witness. Wam the client that you can not speak to them about their testimony once the examination for discovery is under way. Counsel should also warn the witness that you may reexamine them at the end of the other lawyer's examination. Chapter IX of The Code of Professional Conduct concerns The Lawyer as Advocate the Rule is stated as follows: When acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law.

10 8 Under the Commentary section, Guiding Priniciple16 states as follows: 16. The lawyer should observe the following guidelines respecting communication with witnesses giving evidence: CONCLUSION (d) During cross examination by an opposing lawyer the lawyer ought not to have any conversation with the witness respecting the witness' evidence or relative to any issue in the proceeding. (e) Between completion of cross examination and commencement of re-examination the lawyer who is going to re-examine the witness ought not to have any discussion respecting the evidence that will be dealt with on re-examination. Careful preparation of your witness for examination for discovery will pay dividends. Your instructions to the witness will provide them with insight into the role they will play at examination for discovery and the confidence they need to fulfill that role. The exchange of information necessary for preparing your witness for their examination for discovery will also better prepare you for the discovery of other side.

11 9 Schedule "A" WHAT IS AN EXAMINATION FOR DISCOVERY? An examination for discovery is an official step in the lawsuit in which you are a witness who is required to answer questions under oath by the lawyer representing (the other side). Your job is to tell the truth and answer the questions which are asked ofyou. If your lawyer thinks a question asked ofyou is improper, hel or she will interrupt and object to the question. Follow your lawyer's instructions as to whether or not to answer the question. Every question asked and every answer you give will be recorded and later set out in a type written transcript that can be used in court. The examination for discovery will takes place on _day, 200_ at (one of lawyers offices or court reporter's office) beginning at 10:00 a.m. The discovery of you may last one hour, a few hours or several days, depending on how complex the case is. Generally, you will have to remain until the other side's lawyer has asked all his or her questions. You can take some breaks from the examination for example to clear your head or use the washroom. In most cases only a few people will be present at the discovery, your lawyer, the lawyer representing the other side, the person on the other side and the court reporter. The lawyer who will be asking questions of you also has a job to do. He or she will ask you about your version of the facts of the case and confirm those facts on the record. The lawyer representing the other side will also attempt to get you to admit to certain facts which may assist his client's case or weaken you case. In addition, the lawyer representing the other side will make sure that you and your lawyer provide all of the relevant documents respecting the lawsuit. You can also expect that that the lawyer asking questions of you will be assessing you as to what kind of witness you would make ifthe matter proceeds to trial and sizing up the strength of your overall case. If you are unable to answer a specific question put to you at the discovery but are in a position to provide the answer after the discovery your lawyer may agree to have you undertake to provide a written response to the question. Follow you lawyers instructions to you respecting such undertakings. Your lawyer will have some specific advice on what questions may be asked of you at your discovery. An Examination for Discovery Is Not: Your day in court, to testify about the things that you want to testify about. That comes at the trial. The time for you to argue with the other side's lawyer that your case is right. The time for your lawyer to argue your case for you.

12 10 Schedule "B" Seven Simple Rules on Being a Discovery Witness What follows is some basic rules for you to keep in mind throughout a discovery. 1. ALWAYS TELL THE TRUTH Honesty is always the best policy. 2. LISTEN TO THE QUESTION AND THEN SPEAK CLEARLY Take your time. Listen to the question, understand the question and speak. 3. IF YOU CAN ANSWER A QUESTION, DO SO Don't be evasive. Ifyou can answer the question, do so. 4. ANSWER THE QUESTION YOU HAVE BEEN ASKED Answer the question honestly and directly. Be brief. Do not volunteer other information. 5. DO NOT GUESS AT AN ANSWER Ifyou don't know the answer to the question, just say so. Do not guess. 6. IF YOU DON'T UNDERSTAND A QUESTION OR NEED IT REPHRASED SPEAK UP Don't be afraid to say you don't understand the question. Speak up. 7. IF YOUR LAWYER ADVISES YOU NOT TO ANSWER QUESTION, TAKE YOUR LAWYER'S ADVICE. Listen to your own lawyer.