Examinations for discovery are a true on-the-job skill. Law school does not teach you how to conduct one, and watching experts examine during your articles will only take you so far when you find yourself on your own, face to face with an evasive witness and a combative opposing counsel. This article is by no means an exhaustive manual on examinations for discovery, but only a series of tips from the perspective of a junior (but not so junior) lawyer.
- Prepare, prepare, prepare
Sorry, my first tip is no shortcut. I have seen senior counsel conduct flawless examinations for discovery guided only by a few highlights and post-its on key documents. That is not me (at least not yet). I always have an extensive question outline where I type out every single question that comes to me in the course of preparation, in a logical, coherent organization. Most often, that organization involves some form of chronology – at least for some of the topics that need to be covered. The outline should also identify the tab numbers clearly whenever questions refer to specific documents; this simple detail helps both in terms of pace, and in terms of making a clean transcript. I also find the process of making a detailed outline very helpful in terms of simply learning the case. I remain prepared to deviate from it if the answers of the witness force me to, and I find that the more detailed the outline, the more prepared I am to improvise as required, depending on the answers of the witness and the conduct of counsel.
- Be humble and friendly (*But see #3 and #4)
This tip is about tone and style, and everyone’s will be different. Mine is to start as humble and friendly as possible. I find that witnesses seem more relaxed when they notice a ‘junior’ lawyer is examining them. Relaxed witnesses are generally more candid than witnesses who have their guard up. If you can, leave the more contentious parts of the examination (i.e., where you might corner the witness with an unhelpful document) for later on in the examination, after you cover other topics with better cooperation. Don’t let on when an answer you get is helpful to you. Just move smoothly to the next question and don’t give the witness an opportunity to take it back. I have found this approach helpful in both examinations for discovery and cross-examinations.
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