If you are headed to trial, examinations for discovery may be part of the preparation that the lawyers go through to obtain the facts relevant to the claims made in your family law matter. An examination for discovery and review of documents the parties have disclosed helps the lawyers confirm the facts that each party is going to rely on at trial and can help to narrow the issues. The results can also sometimes lead to settlement negotiations and agreements.
Your examination for discovery will likely be the first time that the opposing lawyer will hear from you directly and this can help him or her better understand the strengths of your case and whether you will make a good witness at trial.
The transcript from your examination for discovery can be used in court to undermine your credibility or as the basis for legal arguments regarding your position. Remember that it is a tool for the other side (not you), but it is vital that you be accurate and forthright in your answers. It shows respect for the court and the legal process itself. Your lawyer will have the opportunity to conduct an examination for discovery of the opposing party.
The Mechanics of an Examination for Discovery and What to Expect
It is an oral examination conducted by a lawyer for the opposing party where the party being examined is under oath (you can swear or affirm, to tell the truth).
An examination for discovery usually takes place at the office of a certified court reporter or in a boardroom at your lawyer’s or the other party’s lawyer’s office, again before a court reporter. Your lawyer will tell you where and when to attend and will help prepare you if you are the one being examined.
You and your lawyer sit across from your Ex and his/her lawyer with a court reporter at the head of a table.
There is no judge present. The court reporter is there to take down the questions and your answers verbatim (exactly as spoken). The court reporter then produces a transcript and provides copies to your lawyer and your Ex’s lawyer.
The purpose of an examination for discovery is to let the other side ask questions so they can determine what they need to know regarding the issues in the dispute and what evidence supports your position on those issues.
Who must attend
If you are the claimant and your Ex is being examined by your lawyer, you must attend.
If your Ex’s lawyer decides he or she wants to examine you and if your Ex is the respondent, he or she does not have to attend.
The only people in the room will be you, your Ex, your lawyers, and the court reporter. You don’t have to worry about your Ex’s new partner or family members “sitting in.”
Preparing for an examination for discovery
It is normal to be nervous before attending your first examination for discovery. It can help to remember that your lawyer is there to make sure you are not asked inappropriate questions and to protect you if the other lawyer gets aggressive. The general rule is that questions are supposed to address only information that is relevant to the dispute or to the discovery of facts that are relevant to the dispute.
Review materials like affidavits, documents, and timelines
It is an unfortunate situation, but it can take a significant amount of time for a family law dispute to wind its way through the process to a resolution. This means that by the time you get to the point where an examination for discovery is necessary, the details of your dispute (especially if it’s something like a child support review that goes back several years) will not be as fresh in your mind as they once were.
Before you attend, it is a good idea to review any affidavits that have already been filed in court so you can refresh your memory. At least a week before your examination for discovery, set aside enough time to refresh your memory by reviewing the affidavits, any documentary evidence that has been produced, and the chronology of events. Talk to your lawyer about what he or she thinks you should review and tell them if there are any areas you are nervous or unsure about.
Take care of yourself and keep things low stress
Try to get a good night’s sleep beforehand. Eat a proper breakfast (go easy on the coffee or tea, they can make you jittery) and leave yourself plenty of time to get to the place where your examination is being held.
What to wear
This is not court, so you do not need to wear a suit or business attire unless that is your usual mode of dress. But, business casual is a good rule to follow. Wear something comfortable and bring a sweater in case you get cold (because the lawyers will be in suits the air conditioning may be turned on).
At the Examination for Discovery – General Tips
Your lawyer will talk to you about the process. They will ask you if you prefer to swear or affirm. If you are not a religious person, you don’t need to swear. It will not make any difference if you prefer to affirm.
Listen carefully and wait for the whole question
Listen carefully to the whole question that you are being asked and wait until you are sure the lawyer is finished asking the question before you start your answer.
It is perfectly ok to take the time you need to collect your thoughts and think before you answer. You should do this for two reasons: you want to answer only what is asked and avoid giving the other lawyer an opportunity to go on a fishing expedition, and the court reporter can only take down one response at a time, so if you start talking while the lawyer is talking, it disrupts the transcript.
If you don’t understand the question or don’t know the answer, say so
If you don’t understand what the lawyer is asking you, it’s ok to say, “I don’t know what you mean, can you clarify?”
It is fine to confirm you do not know the answer to a question you are asked. Do not guess.
When you should stop talking
If the other lawyer asks you an improper question, your lawyer will jump in. Before the examination for discovery starts, your lawyer will tell you how they will signal when you should stop talking because they are going to object to a question. Typically, they may touch your arm or say, “Don’t answer that.” If this happens, STOP talking, even if you are in the middle of a sentence.
The reason your lawyer may want to stop you is that they want to object to a particular question or line of questioning. Sometimes this happens if the other side is trying to get you to give your opinion on what you think the law is. Sometimes the question is inflammatory or inappropriate, and your lawyer will step in to protect you. Let them do their job.
Tell the truth and be accurate
It may seem obvious, but tell the truth and be as accurate as you can. The transcript of your examination can be used by the other side in their submissions to the court. If you lie, misrepresent or exaggerate in your answers you may come across as untruthful or unreliable, and the other side can use this impression to try to damage your credibility.
Don’t guess at an answer or speculate. Many people have a strong urge to try to answer whatever they have been asked, whether the question is reasonable or not. If you can’t remember the details of a particular situation, it is okay to say, “I don’t remember.” The lawyer may ask you to inform yourself about that aspect of the case and respond later, and that’s fine. But don’t try to construct an answer just because you feel obliged to answer.
Keep your answers short and to the point. If the lawyer for the other side wants more detail, they will ask.
Your lawyer will prepare you for your examination for discovery and you should not hesitate to ask questions about the process of you have concerns.