Before the Examination

AuthorJohn Hollander
before the examination
chapter six
Before the Examination
   and lost in preparation. I have yet to
hear a judge say at trial, “Counsel, you are clearly over-pre-
pared.” e opposite statement is heard too frequently. In
the discovery process, preparation consists of three stages:
. Gather and disclose relevant documents.
. Prepare the witness to be examined.
. Prepare yourself to conduct the examination.
ese are discrete steps, but they occur together to a
large extent. Every time you learn something about the
case you prepare for the examination, and every time you
run across a document, you prepare for both the exam-
ination and the disclosure.
When you meet the client in an initial interview, you
can start the process of education for the witness’s testi-
mony downstream. I hesitate to call it what it is, behav-
iour modication, for fear that young readers will take
this as advocacy for coaching witnesses. A witness who
rambles, who uses colourful language, who uses stock
phrases (“to tell the truth . . .”), who accepts the blame
for everything — such a witness cries out for training.
 
is part deals with several techniques and concepts
that arise before you step into the examination.
Documentary Disclosure
   era, civil litigation has become a documen-
tary contest. is is true whether the case involves personal
injury; matrimonial, employment, or commercial disputes;
or any other subject. Rule-makers have determined that
full disclosure keeps cases away from trial. Only recently
have they begun to understand the concept of proportion-
ality; that not all documents are created equal.
Nevertheless, the boundary for production of docu-
ments combines relevance, proportionality, and privilege.
In order to understand how each of these concepts may
apply in a given case, counsel must understand the case
itself. What is relevant, of course, comes from what is
pleaded. e issues dene the initial borders of relevance.
In an age of electronic devices and “cloud” databases,
exactly what is meant by the word “document” is a moving
target. For example, a cell phone may have been used at
the time of an accident. Use of the phone leaves a record of
times of calls, and in addition, the other caller’s number can
be identied. ese records are documents that could be
produced. In the circumstances of any given case, should
they be produced? Is the other party to the call likely to be
a witness? Are there issues of third-party condentiality at
stake? Is there too much eort involved to collect the data?
In mid-sized and larger law oces, clerks and junior
associates often bear the responsibility for the assembly,
organization, and creation of the documentary disclosure.
before the examination
ey become primarily responsible for compiling and
organizing lists and briefs of the documents. Except in
the case of highly experienced clerks, decisions related to
relevance, proportionality, and privilege still rest with the
responsible lawyers.
ere is sophisticated software available to compile
document lists. Clerks or clients scan their documents.
e electronic version of the document is then processed
by database software that allows the user to read as well
as search and organize. is capability is seductive, but it
does not replace analysis it merely enables analysis. Un-
fortunately, as technology increases the capacity to perform
functions, lawyers gure out ways to spend more time and
more eort. e result is an increase in the level of sophis-
tication of evidence presented in court proceedings. Un-
fortunately, there is a corresponding decrease in access to
justice of clients other than large, institutional ones.
e next chapter is a review of documentary disclo-
sure and other pre-examination processes from the point
of view of the novice lawyer. Junior counsel may have the
responsibility to perform the functions required to com-
plete this stage. Fortunately, with adequate organization,
they also have the ability to advance the interests of their
clients. Preparation is the great leveller of playing elds.
is part seeks to arm novice counsel with the organiza-
tional and analytical skills necessary to turn preparation
into eective preparation.
ere are several steps to prepare for documentary
. Determine what is relevant (the broad boundaries).
. Determine whether a relevant document is privileged.

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