Examinations for Discovery: Discovery Questions and Technique
My colleague Rebecca Kennedy and I are taking part in The Advocates Society’s Examinations for Discovery: Building Block Series. Rebecca’s blog on our first session on Theory, Strategy, and Preparation can be found here. The second session out of four total sessions took place this past Tuesday and it was all about how to structure your questions and how to deal with the witness and counsel during the examination.
There were many tips from Sandra Barton (Gowling WLG (Canada) LLP) and Tom Curry (Lenczner Slaght) on how to develop effective discovery questions. One tip that stuck with me was the need to conduct legal research at this stage of the process in preparation for discoveries. Sandra and Tom taught us the technique of crafting questions that are modelled after a legal analysis of the issues in dispute. Knowing the “test” and how that “test” has been considered in similar factual circumstances by judges will help advocates come up with questions that are specifically intended to flush out the salient facts in their case. This practice will also help advocates develop a sense of what is or is not relevant for the purposes of objections and answers to undertakings. Moreover, we cannot underestimate how preparation and knowledge of the law will help us feel confident and in control even if we are doing something for the first time.
Thereafter, the participants were divided into smaller groups with an expert faculty member to share our own tips, tricks, and thoughts on how to deal with difficult moments in discoveries. As someone who practices exclusively in estates, trusts, and capacity litigation, it was eye opening to hear from colleagues in other practice areas.
The rest of program was focused on the basis for undertakings, refusals, and objections, as well as a panel discussion on how to deal with difficult counsel. Another tip that I took away from Sandra and Tom was the benefit of thinking about your case from the perspective of opposing counsel. It was the idea of “leaning in” to the other side’s case so that you can get to where you need to go more efficiently. Putting yourself in the perspective of opposing counsel will also help you figure out where the sensitive areas may be, and be better prepared for those objections and refusals.
Stay tuned for our future blogs on sessions three and four of this Building Block Series. Better yet, join us and learn with us! As I’ve mentioned in our recent TAS Estates Litigation Practice Group Bench and Bar Event, this is a fantastic program for civil and estates litigators alike.
Love to see you at our annual Top Cases in Estates Law Event on January 21, 2022 as well.
Thanks for reading!