Judgment Calls: The Tactics of Discovery

AuthorJohn Hollander
judgment calls: the tactics of discovery
chapter five
Judgment Calls: The Tactics
of Discovery
   deadly for your examination, and al-
most as bad, you may not even recognize that a decision
is called for. How can you make a judgment call when
you don’t know that the situation calls for one? First, you
must recognize that you have reached a fork no matter
which path you choose to take, you may make a misstep
that causes failure.
Lawyers encounter many dicult decisions that call
for professional judgment, and to make a good decision,
a lawyer has to weigh the risks and rewards of the choices.
With experience, these judgment calls cause less anx-
iety but experience will never allow us to avoid mak-
ing them. Add to that dilemma the fact that the decision
must be made in real time, during the examination. Some
decisions can be delayed until the next break so that they
can reect on it, or call a friend for help; however, most
must be made on the spot. en the examiner has to get
on with it, comfortable that they made the decision as
well as they could.
e next several chapters present judgment calls that
arise during examinations for discovery.
 
One Question Too Many
   great subject for trial examiners. In theory, you
should never ask a question to which you do not know
the answer you will prepare with your witnesses and
receive disclosure of what the opposition witnesses will
say. However, on examinations for discovery, this is not
the case. You have the pleadings, documentary disclosure,
and what your client has to say, and that may be all you
have. erefore, the problem does not arise in the same
ways as it does at trial, and the consequences are dierent
as well. Whatever is said at trial becomes evidence for use
by the decision maker. In discovery, the opposition can-
not use the transcript from its own witness, at least not at
trial. erefore, if you receive an answer that you do not
like, it usually does not come back to haunt you.
Once you ask the question, both the witness and the
lawyer hear the question and the answer, which means
that they can anticipate the line of questions at trial, al-
lowing them to prepare for that line of questions. If your
question suggests facts, then both the witness and the law-
yer hear that as well, and discovery can therefore be a two-
way street. Opposing counsel can learn as much as you do.
is bring us to the issue of “one question too many” for
discovery. e dilemma that faces the examiner is quite
dierent than that which faces the examiner at trial. ere
are two common circumstances where the examiner has
to analyze and assess the risk of asking the next question.
First, the witness gives an answer that helps the examiner’s
case or harms that of the witness. Second, the examiner
knows something that opposing counsel likely does not.
Let’s examine those two distinct situations.

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