EXAMINATIONS FOR DISCOVERY AS A NEW LAWYER
By: Effie Lin
Examinations for discovery are great opportunities to develop and refine oral advocacy skills. This is especially true for new lawyers who were called to the bar during the COVID-19 era when other advocacy experiences were curtailed or put on hold. There is a lot to learn from both leading your own discoveries and observing senior counsel. In my two short years of practice, I have learned a lot about preparing for, taking on, and reporting after discoveries and I hope to share some of those lessons with you in this article.
Preparation is Key
When I first started leading discoveries, I found that the learning curve was quite steep. I went from only taking notes as an articling student to simultaneously asking the questions I prepared, coming up with follow-up questions on the spot, and managing the witness - on top of taking sufficient notes in order to prepare my post-discovery reports. While it may not be helpful for everyone, I personally have found that having a script that lists out all the questions I want to ask and leaves space for my notes is very beneficial. This is particularly true when examining difficult and evasive witnesses who may derail the line of questioning multiple times throughout the discovery.
As a new lawyer, I also get nervous about missing important questions. It may be trite to say this, but a thorough review of the file and your client’s position while preparing for discoveries, whether you are leading or not, will help calm some of that anxiety and also assist in ensuring you cover questions that are not asked by other lawyers with a different position than yours.
Don’t Miss the Forest for the Trees
While having a script or simply a list of points to cover is certainly helpful, it is also important to not rely solely on that preparation. For example, I have examined witnesses on their employment background in fields I knew nothing about with little documentary disclosure and thus could come up with very few questions in advance. In those situations, the best way to ensure the issues are explored fully is to listen closely to the witness while keeping in mind the overall purpose of your line of questioning in order to think of relevant and targeted questions. Do not be afraid to ask questions that may seem obvious to the witness; after all, it is your job to make sure that relevant details to material issues are put onto the record.
Remember the Written Transcript
The end product of an examination for discovery is a written transcript that may be used at trial. Witnesses will often use their hands and make gestures while verbally saying phrases such as “like this”, “over there”, “from here to here”, etc. As counsel, you may need to describe, using words only, what it is the witness is trying to convey in order for the answer to have meaning when read from the transcript.
In the age of virtual discoveries, screen sharing is often used to incorporate visual aids during the examination. As counsel, it is up to you to ensure it is clear on the transcript which document or image is being discussed during the discovery. A useful tactic I have adopted is to share my screen and use the witness’ evidence to make colour-coded markings on an image or map while verbally describing what I am doing, and then make the annotated document an exhibit to the discovery.
The Rules, the Case Law, and Other Statutes
The importance of familiarity with the Rules of Civil Procedure goes without saying. It is also important to keep up to date on the case law relevant to examinations for discovery. For example, Rule 31.06 addresses the scope of discoveries but the four subrules are more thoroughly explored in Ontario v Rothmans Inc., 2011 ONSC 2504. Other case law deal with disclosure of the contents of a Schedule B document, disclosure of surveillance information, questions relating to the injuries of another plaintiff in the action, hypothetical questions, and entitlement to further examinations, just to name a few.
In addition to the above, it may also be helpful to review statutes that are specific to the case on which you are attending the discovery. For example, I was on a discovery in a dog bite case and I knew that per the Dog Owners’ Liability Act, liability did not depend on the owner’s knowledge of the propensity of the dog. Thus, I knew that questions about my client’s understanding of the dog’s history of past incidents were irrelevant. Incorporating specific statutes or case law could also be a good idea when providing your post-discovery assessment to your client.
Impression of the Witnesses
One of the key advantages of attending on an examination for discovery is you get a preview of what an individual would be like as a witness at trial. Immediately after the discovery (or even over the lunch break) I always make a point of jotting down my impression of the witness, including how they dressed, whether they sound rehearsed, their demeanour, any credibility issues, their propensity to evade or go off-topic, and whether they would be liked and believed by a trier of fact. This information is always important in any reporting to the client, and is best captured during, or immediately after, the discovery.
Overall, examinations for discovery are excellent opportunities to practice thinking on your feet, managing witnesses, applying relevant case law, and advocating for your clients outside of court. You may also learn a lot about interesting issues and topics that you otherwise would not encounter. It may be intimidating to take on discoveries as a new lawyer, but I highly encourage you to make use of the experience if it is available to you.
Effie Lin is an associate lawyer at Agro Zaffiro LLP in Hamilton, ON practicing in the area of civil litigation.
She can be reached at:
21 King Street West, 11th Floor
Hamilton, Ontario L8P 4W7
Tel: 905-527-6877, ext. 555
Email: [email protected]
Reis v. CIBC Mortgages Inc., 2011 ONSC 2309
Iannarella v. Corbett, 2015 ONCA 110
Amsinga v. Anderson, 2020 ONSC 6552
The Estate of Maryam Asharzadeh v. Amin, 2019 ONSC 1024
Senechal v. Muskoka (Municipality),  O.J. No. 1406
Dog Owners’ Liability Act, R.S.O. 1990, c D.16