Best Practices

• Author: John Hollander
• Pages: 9-32

best practices

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chapter two

Best Practices

   ways to ask questions. A successful

question is one that elicits information upon which the

examiner can later rely. erefore, the “good question” is

one that invites a useful answer. It should ask for infor-

mation that is relevant to the case, and that information

should support the theory of the examiner’s case or harm

that of the opposition; however, this is not to confuse the

tactic with the result. A good question may elicit a poor

answer, one that confuses or avoids the issue. is part of

the book presents techniques and issues to improve the

quality of the question (the tactic) to increase the odds

of a good result.

Apart from recording all questions in exact detail in

advance, the examiner must rely on basic skills during the

examination. While these skills have much in common

with those used in direct examinations at trial, they dier

in that the examiner cannot rehearse with the witness.

Once the examiner starts an examination for discov-

ery, the witness will not try to help out the examiner who

fumbles with a question. Either the witness or the lawyer

for the witness will seize the opportunities to interrupt,

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object, and avoid the appearance of a concession. Basic

examination techniques are therefore very important to

a successful outcome. e techniques and exercises pre-

sented below should assist the novice counsel to meet this

challenge.

General to Specif‌ic

 -, examiners have an array of op-

tions when they deal with a specic subject. One of these

techniques is to ask a general question and then to at-

tack specic elements of the answer. Typically, a general

question will elicit a long answer, and long answers have

several elements that give the examiner an opportunity

to exploit.

In the case of examinations for discovery, the options

are narrower. Unless the examiner intends to cross-exam-

ine on a specic point, the general-to-specic technique

works best. ere are two skills involved. e rst is the

ability to frame the question to suit the subject. e

second is the ability to ask follow-up questions that are

designed both for defence (in which the examiner learns

about the case presented by the witness) and oence (in

which the examiner seeks to destroy that case).

Keep in mind that the “case” is the one presented by

the witness, who is usually a party or a representative of

the party. For you to ask questions of that witness, you

must represent a party adverse in interest to that witness.

How do you frame the question to suit the subject?

ere are several techniques to accomplish this. In your

preparation for discovery (dealt with elsewhere in this