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Newfoundland Injury Law BlogAccidents and Injuries
Cross Examination: Giving a Good Oral Discovery
Oral discovery happens when evidence is taken under oath (or solemn affirmation) with the opposing lawyer asking questions, usually in a law office boardroom. The evidence is recorded and a transcript is typed up.
In a personal injury case, the objective of the other side at oral discovery (broadly speaking) is to meet the claimant and form a personal impression of him or her, to explore inconsistencies between the claimant’s medical history and the claimed injuries, and to establish the claimant’s version of the story in a way that can be used later if the story changes at trial.
There are two styles of conducting discovery. Discovery can proceed as a learning exercise, by which the defence attempts literally to learn or “discover” the plaintiff’s story through a series of who, what, where, why, when, and how questions, or discovery can be conducted as a cross-examination discovery, in which the lawyer asking the questions thoroughly prepares beforehand to establish areas of examination in which he believes he can by use of leading questions, one fact at a time, establish points that will hurt the claimant’s case. Fortunately for plaintiffs, few defence discoveries are conducted according to the cross-examination method, and most discoveries proceed on the basis of who, what, where, why, when, and how questions.
The client can do many things to maximize the chances of giving good discovery evidence. At our firm, we meet with you to properly prepare for your oral discovery under oath, and we find that clients who prepare for discovery have a much better experience. Here are some quick tips for giving a good oral discovery:
1. You can’t win your case at discovery but you can sure lose it.
2. You will be under oath. Tell the truth--the insurance companies have access to huge databases, and if you have a prior claim, or a bankruptcy, or if you have posted information about yourself on the internet, they will find it. Never exaggerate.
3. Be “on guard” the whole time. They may act friendly and professional but they are not your friends.
4. Be pleasant, polite, and don’t show any “attitude” or get in personal conflict with the examining lawyer.
5. Listen to the whole question. Resist the human urge to interrupt.
6. Resist the urge to tell them “well, what you really want to know is…” or “the question you didn’t ask but should have is…” In other words, don’t volunteer answers to questions they don’t ask.
7. Don’t answer a question you don’t fully understand. Say you don’t understand.
8. Don’t try to guess “where they are going with that question.” Just concentrate on giving good, truthful answers.
9. If they don’t ask the “right” question, tough for them.
10. Don’t guess. If you don’t know, you don’t know. If you are estimating, please tell them you are estimating.
11. Trust us to protect you from questions not allowed under the rules. We can also clarify unclear answers at the end.
12. Before the discovery, tell us what questions you are afraid of.
Clients who do a reasonable level of preparation and who are able and willing to follow our advice will get the best results from their discovery.
http://en.wikipedia.org/wiki/Cross-examination; http://www.howardnations.com/crossexamination/cross_ex.html
http://www.oba.org/en/pdf_newsletter/DTFGeneralDiscoverybest.pdf
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