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Use of Examinations for Discovery

Since 2005, we focus on Real Estate, Wills and Estates, and Small Business. We have left this web page in place as a public service.

The purpose of Examinations for Discovery is to enable each side to learn the case against them, and to narrow the issues. Each party may be cross examined by the lawyer for the opposing party. Any relevant question as to a fact must be answered. There is no obligation to answer questions as to evidence.

Answers helpful to the opposing party may be entered by them at the trial as "admissions", which are a form of evidence like "confessions". Answers not helpful to the opposing party but inconsistent with the answerer's testimony at trial may be used in cross examination, in which case they are not evidence of anything but the answerer's lack of credibility.

Since there is a duty to answer all relevant questions, if the answer is not known, an 'undertaking' must be given to provide the answer or document.

It is vital to realize that the answerer can never use his/her own answers to help him/her in any way.

Handling Examinations for Discovery

• Tell the truth.
• Never exaggerate; never estimate; never guess.


If you don't know, say so. Otherwise, your answers will always lead to inconsistencies which reflect badly on everything you say. If the questioner presses for an estimate, state clearly that it is only an estimate and what you are relying on to make the estimate.

• Never volunteer information.


Your answers can only be used against you. The cross examiner is a good listener and will be more than happy to listen to your side at length. It is natural to open up to someone like that. Don't.

• Listen to the question carefully; Answer only the question. But answer the question.


This is an aspect of the rule that you should never volunteer anything, and also prevents misunderstandings from creating inconsistencies. It is very common for people to anticipate a question and answer that question instead of the one asked. It is also common for people to evade a question which seems dangerous and instead explain away what they think the questioner is implying. Don't do this. A good answer to the wrong question is a bad answer.

• Pause and think before answering.


This gives me a chance to object to improper questions. It gives you a chance to be sure you understood the question, and to be sure your answer is accurate.

• If you don't understand the question, get clarification.
• Answer in complete sentences.


This prevents misunderstandings if you failed to listen to the question. It gives you time to think. It prevents the cross-examiner from placing you into a 'rhythm'. A common technique is to plan questions so the witness gets into a rhythm of 'yes, yes, yes' or 'no, no, no'. There is a strong tendency for a witness to answer difficult questions according to the rhythm. A witness can even begin to stop listening carefully to the questions.

• Never undertake anything. I will make those decisions.
• If I object to a question, do not answer it.
• Be polite and pleasant.


Generally the lawyers make an effort to be polite and pleasant. A professional lawyer does not become personally involved. However, they may become deliberately rude, for some purpose, most commonly being to make you lose your control, or to test or show your temper.

• Don't relax. If you become tired, ask for a break.


Often a lawyer will run through the facts chronologically with little interruption or cross examination, to obtain the other party's version which will be presented at trial, and to put them at ease. Having achieved this, and having relaxed the party, they will then seek the damaging admissions, often by skipping about the subjects in a hard to predict order, to throw the party off balance and prevent the use of any rehearsed version.

The standard areas to attack a witness include:

• Perception. Limitations of senses, opportunities to sense, distractions, etc.
• Recollection. Time lapsed, testing recollection of comparable events, inconsistencies, gaps in memory, etc.
• Bias. Prior relationships, prejudices, etc.
• Interest. A stake in the outcome.
• Corruption. Bribery.
• Inconsistencies or lies.

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