Best Examination for Discovery Tips for My Clients

Examinations for Discovery (also sometimes referred to as depositions) are arguably the most important step in most lawsuits. It is the one opportunity (in most cases) for the opposing lawyer to question a party and to gauge whether they will present as believable and likable at trial. In the majority of cases, those two factors are crucial not only to (the amount of) damages, but also to whether you win or lose.

In my close to 20 year legal career, I’ve sat through or taken hundreds of discoveries. Some of them have gone very well, while others have not. While there are numerous things I wish my clients would or would not do, here are my top tips for examination for discovery conduct.

Big 3 Rules For Discovery:

1. Don’t Lie (or Guess)!
2. Answer the Question Given
3. Stop Talking

1. Do not lie or guess.

In my experience as a lawyer, lying (or guessing) leads to losing. It’s almost a hard and fast rule. Just don’t do it.

Ignoring the potential penalties for failing to tell the truth under oath during discovery, I struggle to pinpoint one instance where lying (or guessing) helped a case (of course, I don’t condone such conduct). A good lawyer can overcome a lot of bad facts at trial (where a client is likeable and believable), but it’s a rare case where a lawyer can win with a demonstrated liar as a client.

I can point to numerous instances where lying (or guessing) has lost cases or resulted in much poorer settlements. In a commercial case I defended a few years ago, the business owner told me a great deal about her day to day involvement in the business, which was problematic for her, as her expert had valued the business as a turnkey operation (not dependent upon the owner’s efforts at all). Clearly, she wasn’t being truthful either to me or to her expert, neither of which was helpful to her case. More commonly, injury victims forget to disclose prior injuries, or state things like “no, I can’t lift groceries anymore….” while surveillance has been obtained showing them doing that very thing.

If you legitimately can’t remember, you may rely upon documents and/or your usual practice (i.e. I always drove that route to work in the morning), but you should be clear as to the basis for your answer (i.e. I don’t remember the route I took that morning, but it was my everyday practice to head down Main Street before turning onto …..).

2. Answer the question you are asked.

Parties being examined at discovery need to understand that while they are answering as a historian (i.e. testifying as to their memory or knowledge) they are then playing defence, much like the team that is fielding in baseball. Again, if you’re being asked questions, you are not generally in a position to ‘win‘ your case or to go back to my baseball analogy, in a position to ‘score points or runs’. As such, the best advice is generally to truthfully answer the question and to then to stop talking. As such, it is better to answer “Yes” to the question of “Have you previously been found to have engaged in fraud” (were that in fact the case) than making a non-responsive reply, such as “The proceedings were crooked.” Non-responsive answers often open up other areas for examination while at the same time eroding your credibility, meaning they are often lose-lose and result in unforced errors.

3. Keep your answers to the point and stop talking.

Discovery generally goes best for my clients when they keep their answers short, to the point, and then stop talking. Perhaps you are sensing a theme of this article? Of course, answers must be truthful, but in most cases, questions can be answered in less than 15 seconds. Answers that run longer than that raise the potential that my client’s will run into self-inflicted problems. Remember, if the questioning lawyer wants more information, he or she will simply ask.

Other Handy Tips

It is also helpful for my clients to be mindful of the following:

• Wait until the lawyer has finished asking the full question before starting to answer (one person speaks at a time).
• Tell the lawyer if you (truthfully) don’t understand the question or are unsure of what is being asked, so that the meaning of the question can be clarified.
• Do not have anything in front of you that I (your lawyer) have not reviewed, in its current format (i.e. don’t bring your own notes, or case documents that you have added notes and comments to).
• Let me (your lawyer) agree to give any Undertakings.
• Stop talking if I make an objection.
• You are free to look at either party’s Affidavit of Documents or to request to be shown a specific document therein to assist you with answering a question, if you need to see such document to do so.
• If you need a break (i.e. restroom), you will need to request a break.
• Prior to trial, you have an obligation to correct any answers that were incorrect, especially if you anticipate answering differently at trial.

Other Information About Examination for Discovery

For my clients, I have posted some other information about discoveries that I think is useful.

Matt Powell, a Florida Board Certified Trial Lawyer, has created this great video on How to Give a Deposition. The first 10 or so minutes are relevant to Examination for Discovery in Ontario.

I also encourage my clients to review the Statement of Claim, Defence and Reply, if any.

My personal injury clients should also review my article on How to Help Your Lawyer Win Your Personal Injury Case and if you haven’t provided me with a list of things you can no longer do or now have difficulty doing, along with a list of treating medical providers and receipts, that you promptly do so.

If you need a lawyer to represent you, please contact Michael Lesage of Michael’s Law Firm. With law offices in Hamilton, Toronto, and Niagara, we can meet you where it is convenient. Call 647-495-8995 or contact our lawyers online.