Best Practices

AuthorJohn Hollander
best practices
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,
 
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
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

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