How to Conduct Yourself at an Examination for Discovery

You have an Examination for Discovery (“ED”) ahead in which you will be examined. You have reviewed your documents and re-acquainted yourself with the facts of your case. You have gathered any relevant information to the best of your abilities such as the names of doctors or service providers that have been treating you, the dates of treatment, etc. You have also had a good night’s sleep and feel rested but perhaps a little nervous of what lies ahead. Below you will find some tips as to how to conduct yourself at the actual ED which will help you feel calm, will assist in a smooth discovery, and help your lawyer build a winning case.

• First Impressions: typically the ED is the first time that the opposing lawyer will meet you and first impressions count. Opposing lawyers will be assessing you as a witness at trial in terms of how credible you seem and how you will be perceived by a judge or jury. This assessment will also play a role in any settlement of your case; the better impression/witness you make, the stronger your case will be and less likely that the opposing lawyer will want to take you to trial. It is important to make a good impression even physically; this means looking appropriate, but not over the top or “dressed-up”. Other factors that make a good impression are discussed below.

• Honesty is the best policy: a good impression will also be made through the evidence that you provide and how credible you appear. This means being honest with your answers and avoiding exaggerations. It is important that the opposing lawyer, and a potential judge or jury view you and your evidence as trustworthy and credible – the only way to achieving this is by being honest.

• Don’t make assumptions or guess answers: part of providing sound evidence is avoiding assumptions and guessing answers. Assumptions and guesses can only lead to vague statements which may actually harm rather than help you case. If you are inclined to answer questions with such terms as “maybe”, “might have”, “could be”, “would have” or “should”, then you are likely guessing or speculating the answer and should refrain from providing that answer. The better route to take is to simply say that you do not know the answer or cannot recall the answer, as the case may be.

• Answer the question being asked: listening to the questions being asked of you is as important as answering them. If you do not understand the question being asked, ask for clarification. What you want to avoid is answering a question that you thought was being asked – this happens frequently and can result in misunderstandings or miscommunications. Providing short and concise answers is the best way to ensure you are not providing information that was not asked of you.

• Do not be intimidated or argumentative: occasionally opposing lawyers will attempt to use tactics to rattle you. Do not be alarmed, this is why you have a lawyer present. Your lawyer will stop inappropriate behavior by opposing counsel and refuse inappropriate questions. Let your lawyer do his/her job – try not to let opposing counsel mix you up or provoke your temper. No matter the tone or question, stay calm and collected. Take your time, think about the question and your answer, and then provide your answer. If your lawyer does step in, do not speak above your lawyer. Take your lawyer’s direction and cues.

• Be on time: in fact, be early. Meet your lawyer in advance to have a briefing before the discovery begins and to ask any questions that you may have. Enjoy a coffee and something to eat to take you through to lunch. Most of all, relax and remember that you are simply telling the other lawyer your side of the case. It’s your opportunity to have the opposing lawyer hear from you directly.