Preparation for Examinations
| Author | John Hollander |
| Pages | 3-34 |
preparation for examinations
preparation for examinations
chapter one
Preparation for Examinations
techniques generally common to the
examinations that litigators conduct. is chapter of the
handbook deals with what examiners must consider before
they enter the courtroom.
Essentially, litigators have to think before they open
their mouth. e thought process is dealt with at length
in the Young Advocates Series’s Case Analysis and Discovery
Techniques
handbooks. Preparation is a work in progress,
as the more the lawyer learns and thinks, the more the law-
yer can ne-tune questions to accomplish the best results.
ere are several preparation techniques that the lawyer
should learn and master, some of which are canvassed in
this chapter. ere is some overlap with the following
chapters that deal with specic examinations.
Examiners must consider their strategy and tactics
before they ask questions of witnesses. Strategy is neces-
sary to identify and set the goals in the bigger picture, the
case. Tactics are necessary to arrange the right questions
1 John Hollander, Discovery Techniques: A Practical Guide to the
Discovery Process in Civil Actions (Toronto: Irwin Law, 2013),
online: www.irwinlaw.com/titles/discovery-techniques.
to accomplish those goals. Preparation includes both the
lawyer and the witness (in direct examinations). is is a
three-step process:
. e lawyer prepares to see the witness.
. e lawyer then prepares the witness.
. Finally, the lawyer prepares for the examination.
is chapter addresses two subjects: how to consider
the case (the “big picture”) and the examination (the “little
picture”) and then how to approach trial examinations in
general.
Case Analysis
examination, the examiner
should know what is to be accomplished and at what risk.
is subject is reviewed at length in the sixth handbook
of this series, Case Analysis. Case analysis consists of six
discrete steps:
. Articulate the issue as succinctly as possible. is
should be performed in a neutral fashion that is beyond
controversy. e issue can be general (the whole case)
or specic (liability, damages, or a specic defence).
. Identify all of the necessary elements to encompass
the case from start to nish. Again, these should be
expressed as succinctly as possible. Also, they should
be expressed in a neutral fashion that all parties could
accept. In this step, the analyst should remove all ele-
ments that are not essential to get the analysis from
beginning to end.
preparation for examinations
. Restate the issue from the point of view of the client
of the analyst. e issue should now consist of a few
words that bring to mind some emotional reaction.
e issue could be phrased in the form of an advertis-
ing jingle or commonly used phrase or idiom.
. Restate all of the necessary elements so that they reect
the position of the analyst’s client. Controversy is quite
acceptable at this stage. e purpose of the restate-
ment will be to encourage the analyst to determine
whether there exists appropriate proof or evidence to
establish the spin. e neutral form (“Whether the
conduct was excessive”) becomes adversarial (“is is
a case of abuse”).
. e last two steps require that the analyst think out-
side the box. Consider the case from the perspective of
the opposing party. Restate the issue from the point
of view of the opposition, complete with succinct and
emotional rephrasing.
. Restate all of the necessary elements so that they re-
ect the position of the opposition. Again, the purpose
is to encourage the analyst to determine whether the
other side has a better story. If so, the analyst should
take steps to improve the client’s position or else make
the best settlement possible.
Why is this necessary in examinations?
in examinations because lawyers do
not create the story. Witnesses do. Lawyers should ensure
that each witness testies in support of one or more ele-
ments. ose witnesses will support the spin that the law-
yers identify as being necessary in the fourth step of case
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