Judgment Calls: The Tactics of Discovery

• Author: John Hollander
• Pages: 67-88

judgment calls: the tactics of discovery

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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.

 

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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.