Before the Examination

• Author: John Hollander
• Pages: 89-122

before the examination

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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.

 

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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

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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

disclosure.

. Determine what is relevant (the broad boundaries).

. Determine whether a relevant document is privileged.