So, you have been served by a process server with a Notice of Examination, now what do you do? If you have a lawyer let them know that you have been served, they will advise you to the next steps.
If you do not have a lawyer, here are are some general guidelines on what to do and expect.
On the examination you will see a time and place for your examination.
During your examination for discovery, the opposing party’s lawyer will ask you questions. Before you are questioned, you will be asked to swear or affirm to tell the truth. I will be present during your questioning to ensure that no improper questions are asked of you. I will also have the opportunity to ask questions of your opponent.
An examination for discovery is an important stage of a lawsuit. It allows us to better understand our case and the case of our opponent. During an examination for discovery, the lawyer who is asking the questions will attempt to do the following:
• obtain admissions which will help prove his/her case;
• obtain admissions which will weaken his/her opponent’s case; and
• discover the facts and evidence upon which his/her opponent relies on to support his/her case.
Your examination for discovery is not held in a courtroom in front of a judge; rather, it is held in the presence of a court reporter who records all of the questions and answers. After the examination for discovery, all of the questions and answers are transcribed in an official transcript.
The transcript of your evidence can only be used by the opposing party at trial. It can be used against you as follows:
• if you admitted anything during your examination for discovery that is damaging to your case, the opposing lawyer can read the admission as evidence at trial. I can only use your transcript to qualify or explain the portion of the transcript that the opposing party has already used against you at trial; and
• to undermine your credibility. If, while testifying at trial, you provide evidence that contradicts the evidence you provided during your examination for discovery, the opposing lawyer can confront you with the transcript of the evidence from your examination for discovery to undermine your credibility.
Likewise, I can utilize the transcript from your opponent’s examination for discovery for the purposes outlined above.
It is very important for you to remember that your examination for discovery is conducted not for your benefit but for the benefit of your opponent. You have a duty to answer all proper questions truthfully and to the best of your ability. At the same time, you want to be careful that you do not provide answers that you will later regret. To this end, I have listed below several suggestions that provide you with guidance as to how you should conduct yourself during your examination for discovery.
1. Wait until the question is asked before you start to answer
Do not attempt to answer a question until you have formulated your answer. Because a “pause” is not reflected in the transcript, take your time when answering the questions asked of you.
2. Just answer the question that is asked
Listen carefully and only answer the question that is asked. Do not volunteer information. Offering more information than what is asked of you not only will increase the cost of the transcript, it may also provide your opponent with information that damages your case.
3. Never guess
If you do not know the answer to a question, say so. In an appropriate case, we can undertake to provide the answer at a later date. On the other hand, if you do know an answer, do not preface your response by saying “I think” or “it is possible.” If you preface your answers with comments such as these, it will appear that you are not sure of anything.
4. If you do not understand the question, say so
Ask that the question be repeated or rephrased. It is better to clarify what the lawyer is attempting to ask than to provide an answer that may be unresponsive.
5. Always answer the question verbally
Because the transcript will only record the spoken word, please answer the question verbally as opposed to shaking your head. Also, please avoid answering with “yup” or “uh-huh” since phrases such as these can be misleading. If you make reference to a document, please clearly identify what document you are referring to and, if possible, advise where in the document you are referring to (e.g. “in the first paragraph”).
6. If I object to a question, do not provide an answer
Even if you disagree with my objection, do not answer a question that I have objected to. For tactical reasons, I will probably not object to a question unless it is very improper or totally irrelevant. We have nothing to hide and I do not want to convey the impression that I am trying to protect you during the examination for discovery.
7. Treat the opposing lawyer with respect
It is in your interest to follow this advice at your examination for discovery. The opposing lawyer is there to assess you as a potential witness. If you appear as a hostile person that nobody would like, the lawyer will presume that the judge will probably not like you either. On the other hand, if the opposing lawyer thinks that you are a decent, likeable person, he/she will presume that the judge will think so as well. Essentially, you want to convey the impression that you will be a good witness at trial.
8. Tell the truth
You are of course under a duty to tell the truth. Telling the truth is also an important strategic point. Sometimes, people are tempted to fudge certain details. Do not do this. Being caught in a lie, however small, will cast doubt on everything that you have said.
After your opponent’s lawyer has finished asking you questions, I may ask you some questions if I feel they are necessary to clarify some of your answers.
Once your examination for discovery is concluded, we can order a copy of your transcript. I will ask you to review your transcript and to advise if you provided any incorrect or incomplete answers. We have a duty to inform the opposing party, in writing, of any errors or incomplete answers.
The above has been provided by Aaron Rousseau, Partner of the law firm of Rousseau Mazzuca LLP.
T. 416.304.9899 F. 437.800.1453
65 Queen Street West, Suite 600, Toronto, Ontario M5H 2M5