Examinations for Discovery: Theory, Strategy and Preparation

October 28, 2021 Rebecca Kennedy Estate Litigation, Litigation Tags: , , , , , , , , , , 0 Comments

This past Friday, I had the pleasure of attending the first session in a new “Building Blocks” series of programs from The Advocates Society regarding examinations for discovery. The first session focused on “Theory, Strategy and Preparation”, and included several excellent panel discussions, as well as an interactive breakout session.

While all of the speakers were superb, the first session presented by Michael Watson of Gowlings and Alexandra S. Clark of the Ministry of the Attorney General, brought us back to basics to discuss the key Rules of Civil Procedure that concern examinations for discovery. I found this session particularly enlightening and engaging, thanks to Michael and Alexandra’s knowledge and enthusiasm on the topic. They shared invaluable tips and tricks about what kind of information may be obtained on discovery, how to deal with objections at examinations, and how discovery evidence may be used at trial.

The final panel of the afternoon discussed preparing your client for discovery. In estates matters, many clients may just be encountering the legal system for the first time, let alone undergoing an oral examination. The preparation process is so important for ensuring that clients feel comfortable with the examination process and ready to be examined (or as ready as they possibly can be). Emily Fan and Jonathan Chen shared practical tips that will no doubt serve anyone well in preparing a witness for discovery. As one example, both Emily and Jonathan shared that their practice involves preparing a discovery brief for their witness, including key documents, which they ask the witness to review in advance of any meeting to prepare for the examination for discovery. This can save precious time in a preparation meeting that would otherwise be wasted while the witness reviews documents they may not have ever seen, or not seen in some time.

Emily also shared the four things she tells clients repeatedly throughout the preparation process:

  1. Always tell the truth.
  2. Make sure you understand the question.
  3. Answer the question that is asked.
  4. Don’t guess.

There are three more sessions in the series, including a skills workshop to allow participants to put into practice the tips we are learning from each session. More details about the program can be found here.

Thanks for reading,

Rebecca Kennedy


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