Examinations for Discovery: What to Expect and Five Tips for Witnesses

An examination for discovery can be a daunting process, particularly for witnesses who have no idea what to expect. For those who are unfamiliar with what an examination for discovery is, it is a formal evidence-gathering step in a lawsuit where a lawyer for one party questions an adverse party about facts relating to a case. For example, at a discovery for a defendant in a lawsuit, the plaintiff’s lawyer will ask the defendant questions. A court reporter will also be present and he or she will make a transcript of the questions asked and the answers given. The answers given by the witness being examined is considered evidence that can be used in the litigation. Rule 7-2 of the Supreme Court Civil Rules governs the examination for discovery process.

Witnesses who are required to attend an examination for discovery will first receive an Appointment to Examine for Discovery. If you have received an appointment, you will be asked to contact your lawyer (or his or her assistant) to set up a time to meet and discuss the process and your evidence. When you meet with your lawyer before your examination, he or she will guide you through what to expect in detail. Your lawyer will also be there with you during the examination itself. In the meantime, here are five basic tips for navigating your way through your first examination for discovery.

1) Understand that you must tell the truth: When the examination for discovery starts, the court reporter will ask you to either swear an oath on the Bible or make a solemn affirmation to tell the truth. If you are religious and believe in the Christian Bible, you can ask to receive an oath; if you are not religious or otherwise do not believe in the Christian Bible, you can ask to make a solemn affirmation. You can tell your lawyer which you prefer when you meet with him or her. Whether you swear an oath or make a solemn affirmation, both have the same effect: that you will tell the truth, the whole truth, and nothing else. Your lawyer will walk you through what all of this means in more detail when you meet with him or her.

2) Keep your answers verbal and speak at a normal pace: As mentioned, a court reporter will be present at your examination for discovery. The court reporter’s job is to transcribe all that is said during the examination itself, except where there are discussions “off the record”. As a result, all of the answers you give must be verbal. Any gestures, inaudible responses, or any other types of non-verbal communication will not appear on the transcript. Similarly, any non-word sounds (e.g. “mm-hm”) ought to be avoided. If you use a non-verbal or non-word answer, don’t beat yourself up; a good lawyer will ask you to re-state your answer. It’s also essential to speak at a good pace so that the court reporter can hear each word that is spoken. Many people who are nervous tend to speak rapidly. Don't worry too much, though; if you speak too quickly, the court reporter will give you a friendly reminder to slow down.

3) Wait for the question to be asked in full before you start answering: Since a transcript is being prepared during the discovery, it is of the utmost importance that you wait for the lawyer to finish speaking before you start answering. This is a simple principle that is often the most difficult to follow, since it’s common in everyday conversation for people to innocently interrupt each other or try and finish each other’s sentences. In a discovery, though, it is crucial to avoid speaking over another person. There are a few reasons for this. The first is obvious: the court reporter can only transcribe one voice at a time. When people speak over one another, the court reporter simply cannot keep up. Second, it is important to let the lawyer finish asking his or her question so that you can be confident that you have understood and heard the entire question before you start answering. Third, it’s always a good idea to give yourself a little bit of breathing room to digest the question and to think carefully about the words you’ll use when giving your answer.

4) If you don’t understand a question, say so: Let’s face it, sometimes lawyers are confusing and questions that we ask can be convoluted or unclear. If you don’t understand, let the lawyer who’s asked you the question know so he or she can rephrase the question or otherwise clarify it so you do understand. If the lawyer uses a word you’re unfamiliar with, tell him or her and ask him to rephrase the question or define the word. Don’t be embarrassed if you haven’t understood a question that has been asked or a word that’s been used. It is of the utmost importance that you fully understand what’s been asked of you, so if you haven’t understood something, just say so and don’t sweat it. The same holds true if you haven’t heard a question. If that happens, simply tell the lawyer that you didn’t hear the question and ask him or her to repeat it.

5) If you have questions for your lawyer ask them when you meet with him or her: If you’ve received an Appointment to Examine for Discovery, you might have lots of questions about what to expect. If you do, it’s a good idea to write them down before you meet with your lawyer prior to the examination for discovery. It’s also a good idea to tell your lawyer beforehand if you have lots of questions so that he or she can schedule an appropriate amount of time to meet with you to discuss your concerns. Sometimes, the meeting with your lawyer will take place the morning before your examination for discovery. However, if you feel more comfortable meeting with your lawyer on a day prior to your discovery, that’s okay, too. Just ask. It’s generally a good idea to meet with your lawyer no more than a week or two before your discovery so that what’s discussed stays fresh in your mind. Ask your lawyer any and all questions when you meet with him or her, since once your examination for discovery starts, you will not be able to seek advice from your lawyer. Your lawyer will explain why this is during your meeting.

All in all, there are lots of other tips that your lawyer will discuss with you when you meet to prepare for your examination for discovery. Remember that it’s natural to be nervous. There is an unfortunate stereotype that lawyers are rude or aggressive, which leads to the common preconception that a discovery is an intimidating and scary process. Rest assured that most lawyers are pleasant, polite, and professional folks who have no interest whatsoever in intimidating or scaring witnesses. In the end, try to relax and remember that your lawyer will be by your side to help you understand the process and to navigate your way through it. Good luck.