Navigating your Examination for Discovery

Published By: scottostler

Examinations for discovery play a crucial role in civil actions; they allow parties to gain insight into the strengths and weaknesses of their case, as well as to clarify the factual and legal questions at issue. Given their importance, it is vital that parties be well-prepared and comfortable with the discovery process. In this post, I outline several tips to help ensure that your examination for discovery proceeds smoothly and successfully.

The Basic Discovery Process

At the outset of your discovery, you will be required to make an oath or solemn affirmation to answer all questions truthfully. Following this, counsel for the opposing party will have the opportunity to ask you any questions relevant to the case. You are obligated to answer these questions to your best knowledge, information, or belief. However, if you are asked an inappropriate or irrelevant question, your lawyer may instruct you not to answer.

Tips for Deponents

When answering opposing counsel’s questions, it is important that you keep the following tips in mind to help ensure that your discovery has the best possible outcome.

Make Sure that you have Understood the Question before Answering

When answering a question, it might be tempting to tell your side of the story, however, this is typically unhelpful. Instead, you should simply answer counsel’s question and refrain from volunteering any additional details.

Do not Answer a Question if Your Lawyer Tells You Not to

If opposing counsel asks you an inappropriate or irrelevant question during the discovery, your lawyer will interject and advise you not to answer it. Should this happen, it is important to follow your counsel’s instructions.

Speak Clearly

Your discovery will be transcribed by a stenographer. To ensure that the stenographer can provide an accurate record of the discovery, you must speak clearly. Moreover, you must answer questions verbally, as non-verbal responses will not be captured by the stenographer’s transcript.

Do not Lose your Temper

During your examination, it is likely that you will be asked difficult questions about personal matters. Moreover, you may feel as though opposing counsel is being unfair or dismissive towards you. However, no matter the situation, it is important that you do not lose your temper during discovery, nor should you attempt to argue with the opposing counsel.

Do not let yourself get too Comfortable

While some lawyers are adversarial at discovery, others adopt a more conversational approach. In such cases, you should not let yourself get too comfortable with opposing counsel. Rather, you must remember that their aim is to gather evidence that could harm your case.

Do Not Answer a Question if you do not Know the Answer

In many cases, discoveries happen years after the events at issue. As a result, it is not unusual to forget some details of your case. If you are asked a question and you either cannot remember or are unsure of the answer, you must say so. You will lose far more credibility by attempting to make up an answer than you would by admitting that you do not know or remember something.

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