Trial Advocacy CML 3154A

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Trial Advocacy CML 3154A

• Faculty of Law, University of Ottawa
• Winter Session, 2005

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Oral Examination for Discovery

• Introduction
• Oral Versus Written Forms of Discovery
• Object and Purpose of Oral Examination for
  Discovery
• Building on the Theme or Theory of the Case
• Personal Knowledge Versus Knowledge on
  Information and Belief

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Oral Examination for Discovery

• Authenticating Documents and Their Contents
• Examination of Corporate and Other Representative
  Deponents
• Undertakings, Objections and Advisements
• The Use of Oral Discovery at Trial

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Oral Versus Written Forms of Discovery

• Rule 31.02(1).
• Oral examination.
• Examination by written questions and answers.
• But not both, except with leave.

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Oral Versus Written Forms of Discovery

• Rule 31.03(2)(b).
• New rule as of January 1, 2005.
• May now examine more than one officer, director
  or employee of corporate litigant, on consent or
  with leave of the court.
• Moving toward an American-style discovery
  process, which permits deposition of more than
  one corporate deponent.

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Object and Purpose of Oral Examination for
Discovery

• Six objects or purposes.
• Understand the nature of the other side's case.
• Obtain preview of documentary evidence.
• Gain admissions for use at trial.
• Commit opposing witness to his or her testimony.
• Fix and narrow issues for trial.
• Assess the personalities involved.

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Building on the Theme or Theory of the Case

• Preparation, preparation, preparation.
• You win by preparation and drudgery. You do
  research and you read. The actual appearance in
  court is often like the tip of an iceberg. You
  try to be succinct. You formulate your
  argument as concisely yet as effectively as
  possible, getting down to the point of the case,
  avoiding red herrings. Sometimes it means weeks
  of preparation..
• The Globe and Mail, November 26, 1979, as cited
  in D. Stockwood, Remembering John Robinette,
  The Advocates Society Journal, Vol. 22, No. 2,
  September 2003.

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Building on the Theme or Theory of the Case

• Discovery is an aid to the case as pleaded.
• Discovery is not an aid to what might have been
  raised or what could have been raised in the
  pleadings.
• Discovery preparation is no place to be
  formulating a theory or theme of the case.
• Scope of discovery is controlled by
• The causes of action and defences pleaded.
• The material facts pleaded.

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Building on the Theme or Theory of the Case

• Identify the factors or components of the causes
  of action or defence is pleaded.
• List the factors.
• E.g. Wrongful Dismissal.
• Contract of employment.
• Terms of contract.
• Breach of contract.
• Damages flowing from the breach.
• May have other causes of action as well requiring
  same analysis.

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Building on the Theme or Theory of the Case

• Identifying the factors or components produces
  questions that can then be organized into a
  discovery plan.
• E.g.. Contract of employment
• Is there a document?
• Does the document contain all of the terms
  between the employer and employee?
• What other terms to the agreement might be
  suggested?

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Personal Knowledge Versus Knowledge on
Information and Belief

• Rule 31.06(1). A person examined for discovery
  shall
• Answer any proper question.
• Relating to any matter in issue.
• To best of person's "knowledge, information and
  belief"

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Personal Knowledge Versus Knowledge on
Information and Belief

• What is a "proper question"?
• Answer is significantly "contextual".
• Privilege.
• Solicitor-client.
• Litigation privilege.
• Settlement negotiations.

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Personal Knowledge Versus Knowledge on
Information and Belief

• "Matter in issue"?
• Framed by the pleadings.
• "Semblance of relevancy".

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Personal Knowledge Versus Knowledge on
Information and Belief

• Rule 31.06(2).
• May obtain disclosure of names and addresses of
  persons who might reasonably be expected to have
  knowledge of transactions or occurrences in
  issue.
• Rule 31.06(3) Expert Opinions
• Disclose "findings, opinions and conclusions".
• Unless undertaking given not to call witness at
  trial.

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Authenticating Documents and Their Contents

• Use of Affidavit of Documents.
• Exhibit briefs.
• Marking exhibit briefs for discovery.
• Rule 30.04(4).
• All documents listed in the affidavit of
  documents must be available at the examination
  for discovery and at the trial of the action.
• Just because document produced an affidavit of
  documents, does not follow that document is
  admissible.

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Examinations of Corporate and Other
Representative Deponents

• Ensure that answers are binding.
• Distinguish between facts within the deponent's
  knowledge and facts on information and belief.
• Deponent has obligation to inform himself or
  herself about the matters in issue.

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Undertakings, Objections and Advisements

• Undertakings.
• Information that the deponent does not have, but
  can obtain through inquiries of others.
• Objections or refusals.
• To the form or content of the question.
• Objecting party states objection for the record.
• Question not answered by the deponent.
• Rule 34.12(1).
• Question may be answered, subject to
  admissibility.
• Advisements.
• These are objections.

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The Use of Oral Discovery at Trial

• Three possible uses of discovery transcript at
  trial.
• As part of the case.
• Impeachment of a witness.
• Subsequent action.

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The Use of Oral Discovery at Trial

• Rule 31.11(1) "Read-ins".
• As part of the party's case.
• Read into evidence from discovery of adverse
  party.
• Evidence must be admissible.

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The Use of Oral Discovery at Trial

• Rule 31.11(2) "Impeachment".
• Impeaching the testimony of the deponent as a
  witness.
• Impeachment in the same manner as impeachment of
  a witness on any previous inconsistent statement.
• Sections 20 and 21, Evidence Act, R.S.O. 1990,
  c.E-23.
• Prior inconsistent statement must be put to the
  witness before introduction into evidence.

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The Use of Oral Discovery at Trial

• Rule 31.11(8) "Subsequent Action
• Transcripts are read into evidence.
• Now generally acceptable practice to also provide
  trial Judge with photocopies of read-in portions
  of transcript.

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The Use of Oral Discovery at Trial

• Deemed undertaking rule.
• Rule 30.1.01(3) "All parties and their counsel
  are deemed to undertake not to use evidence or
  information to which this Rule applies for any
  purposes other than those of the proceeding in
  which the evidence was obtained."

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