I’ll ask the questions: advice in conducting an examination for discovery

Marcus M. Sixta, Founder, Senior Legal Coach, and Mediator

Examination for discovery, also called questioning in Alberta, is a vital process in which one side of a legal claim gets to question the other side under oath.

How do you, as a self-represented litigant make the most of it?

Preparing your questions in advance is important, but what works best is knowing your case well and broadly querying the witness on all of the various issues. This encourages flexibility in responding to the answers and avoids being chained to a script, allowing yourself to go with the flow. You can always fall back on your questions if you get side-tracked with the witness.

What qualifies as a ‘broad question’? Anything beginning with “why?” Then follow up with clarifying questions around the answer given: who, what, when, where, how. Asking a witness to describe something is also a great approach. In the end, the questions in an examination for discovery are about gathering as much information as possible from that witness on the case issues.

You should also be familiar with the potential objections during examination for discovery. Discovery questions are generally given great leeway; anything remotely relevant to the issues in the case is usually allowed. Questions on the thoughts or motivations of another person other than the witness, though, are not permitted; nor questions that seek a legal conclusion from the witness, or involve privileged information (communication between lawyer and client, settlement discussions, settlement offers).

Never forget: you control an examination for discovery. A court reporter creates a word for word transcript of everything said – this transcript is yours to use in court. Should you wish to debate with counsel, going off the record is advised in the interests of keeping the transcript ‘clean’. And these off-record occasions – you decide when these occur, not your opponent.

In the event that a witness is causing trouble – say, is making faces or yelling at you – ensure it’s recorded in the transcript as the judge will see it later; something to the effect of: “Sir, is there something wrong? You keep sticking your tongue out at me”. Additionally, record of a witness refusing to answer a question is key for a judge’s later consideration: “You still have not answered – I take it you are refusing to answer the question?”

Lastly, set an agenda at the beginning of the questioning, letting everyone know that you will have a brief break in the morning, followed by lunch, and another break in the afternoon.

If you’d like to know more about examination for discovery, or any other topic on self-representation, call Coach My Case today for a free consult