Last week I attended the final session of The Advocates Society’s Examinations for Discovery: Building Block Series which was chaired by Sandra L. Barton, Gowling WLG, and Tom Curry, Lenczner Slaght.
This final session was all about how to use the discovery transcript at trial:
- For trial prep;
- “Read-In’s”; and
- Impeachment.
“Read-In’s” are a way of making the sworn evidence at discovery a part of the sworn evidence at trial. Depending on the nature of the admission at discovery, reading it in at trial can be powerful and dramatic tool. However, it is not without risks as it might result in a disruptive debate about how much of the transcript should be read in. One of the tips from Justice Darla Wilson, Risa Kirshblum, and Ronald Caza was the use of a read-in brief that is organized by issue with precise page and line reference numbers. There are also no notice requirements for a read-in at trial although counsel are encouraged to advise the other side a day or two in advance so that the mechanics and scope of the read-in can be worked out.
When it comes to impeachment, Justice Koehnen and Sarit Batner taught us to follow the 3 C’s:
- Commit;
- Credit; and
- Confront.
Commit the witness to the answers that were given during their in-chief.
Credit the witness’ previous answer at discovery by reminding him or her of the circumstances surrounding their previous statement: that the previous statement was made under oath, that they were aware of the significance of their testimony at discovery, that they were prepped for discovery, and that discovery took place closer to the events at issue than the trial.
Once crediting is complete, make sure that the Judge and the witness have the relevant pages of the discovery transcript before them. This can be accomplished by sharing one’s screen in today’s virtual proceedings.
Thereafter, you may confront the witness by putting the previous statement to them. If the previous statement is preferable for your case, get the witness to admit that the previous statement is more likely to be accurate. If the witness disputes the accuracy of the previous statement, then you are impeaching their credibility.
Thanks for reading but better yet sign up for The Advocates Society’s skills workshops to put these tips to practice!