Preparation for Examinations

AuthorJohn Hollander
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
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 specic 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),
   
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
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 specic (liability, damages, or a specic 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 reect
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 testies 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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