The purposes of an examination for discovery have been well described by Mr. Justice Trainor in Ontario Bean Producers Marketing Board v. W.G. Thompson & Sons (1981), 32 O.R. (2d) 69 (H.C.J.) as: (1) to enable the examining party to know the opponent’s case; (2) to obtain admissions in order to dispense with formal proof or destroy the opponent’s case; (3) to facilitate settlement; (4) to eliminate or narrow issues; (5) to avoid surprise at trial.
While this paper is concerned with controlling a witness and obtaining admissions, it is worth mentioning that in order to fulfil the other objectives, controlling the witness may not be the best approach. Control of a witness generally involves the use of closed questions which do not call for explanatory responses. This is inconsistent with the open ended questioning called for on an examination for discovery where the examining party seeks to learn the opponent’s case and avoid surprise at trial. It is important to note that answers given on an examination for discovery cannot be read in by an opposing party in support of their case at trial. As a result, the witness cannot harm the examining party at an examination for discovery. If the evidence given is damaging to your case, it is best to know that at the examination stage and obtain evidence which might potentially be used for impeachment purposes when the witness comes to be examined at trial. For those purposes, control of the witness is neither necessary nor appropriate.
Obtaining admissions on discovery is undoubtedly an important tool. Rule 31.11(1) provides that “At the trial of an action, a party may read into evidence as part of the party’s own case against an adverse party any part of the evidence given on the examination for discovery of (a) the adverse party; or (b) a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the trial judge orders otherwise, if the evidence is otherwise admissible, whether the party or other person has already given evidence or not.” Rule 31.11(2) provides that evidence given on examination for discovery may be used for impeachment purposes at trial and Rule 31.11(3) provides that where part of the evidence on discovery is read in at trial, any other part of the evidence given may be read in at the request of the adverse party “that qualifies or explains the part first introduced.” These rules place a premium on obtaining clear admissions which can be read in at trial without elaboration or qualification. For this purpose, control of the witness on examination for discovery is of paramount importance.
In my view, the techniques required to accomplish this purpose involve: (a) asking short questions; (b) using simple language; (c) listening to the answers; and (d) being persistent.
It is human nature to try and avoid answering troublesome questions. Witnesses use a variety of techniques to do so. Vague answers are perhaps the most common. Avoiding questions entirely are another. The difficulty however often lies with the form of the question. Short, simply framed questions minimize the possibility that evasion can occur and ensure that the examining party maintains control over the witness.
The techniques required to maintain control on an examination for discovery are the same as those used in a cross-examination at trial. They involve the use of leading questions in which the witness is kept on a short leash and made to answer assertions put by the examining party. In Cross-Examination: Science and Techniques, (2nd edition, Matthew Bender, 2004) p. 8-10, Larry Pozner and Roger Dodd emphasize the importance of leading questions:
The leading question positions the cross-examiner as the teacher, while the open ended question positions the cross-examiner as a student. Through the open ended question it is the witness who becomes the teacher. The open ended question focuses courtroom attention on the witness. The leading question focuses attention on the cross-examiner. The cross-examiner seeks that attention not for ego gratification, but for purposes of efficiently teaching the facts of the case. The cross-examiner/teacher using leading questions places the cross-examiner in control of the flow of information. The leading question also allows the cross-examiner to select the topics to be discussed within the cross-examination.”
These principles apply with equal force when seeking admissions on examination for discovery. The use of leading questions allows the examiner to obtain yes or no answers to a series of assertions put to the witness. The shorter the question, the better. Long, compound questions can mistakenly cause the examiner to believe an admission has been made when, in fact, the witness meant something different. There are few greater embarrassments at trial than to put what the examiner believes to be an inconsistent statement to a witness, only to find that this is not the case. This type of problem occurs when the questions are not sufficiently clear.
The benefits of using short questions are apparent. As indicated, they allow the examiner to maintain control over the witness. The gradual accumulation of facts also has a greater persuasive impact. As well, by gentle probing, the examiner will be able to see how far the witness will go in admitting important facts. A few examples will serve to illustrate these points.
Larry Posner and Roger Dodd are strong adherents to the one fact per question method of cross-examination. The example of: “Q. You saw the blue car come around the corner, and speed through the red light? A. No” is transformed into the following: Posner and Dodd,Cross-Examination: Science and Techniques, supra, pp. 8-21-8-22.
“Q. You did see a car.
Q. It was blue.
Q. The blue car came around the corner.
Q. It drove through the red light.
Q. As it drove through the red light, it was speeding.
A. It depends on what you mean by speeding.”
With the use of short questions, the examiner knows precisely what the witness is agreeing to and can more clearly isolate the areas of dispute. Posner and Dodd also show how this method adds to the force of the information. Thus, the exchange of “Q. You saw the six foot, five inch, 225 pound guy with the bloody fists beat down the five foot, seven inch, 155 pound guy with the bloody face? A. Yes” is transformed into the following, supra, pp. 8-32-8-33:
“Q. You saw the fight.
Q. John, the big guy, was fighting.
Q. John was six feet, five inches tall.
Q. John is a big man.
Q. Dave is only five feet seven inches.
Q. Dave is a much smaller boy.
Q. John weighed 225 pounds.
Q. Dave is 155 pounds.
A. About that.
Q. John was a much bigger person.
Q. John was a much heavier person.
Q. And then John was hitting Dave.
Q. He was hitting Dave with his fists.
Q. He was hitting Dave in the face.
Q. John was hitting Dave, and his fists were bloody.
Q. And as you watched, you saw the blood on Dave’s face.
Q. You saw John beating down on Dave in the face, with his fists.
The use of short questions allows the examiner to probe the witness and to see how far he or she is prepared to go in agreeing with the examiner’s questions. The following example, taken from the Lizzie Borden trial, illustrates the point: reprinted in John A. Olah, The Art and Science of Advocacy, (Toronto: Thomson Carswell, 1990), vol. 2, pp. 12-12-12-13.
“Q. You were called Maggie?
A. Yes sir.
Q. By Miss Emma and Miss Lizzie?
A. Yes sir.
Q. But that was not unpleasant to you?
A. No sir, it was not.
Q. Not at all offensive?
A. No sir.
Q. Did not cause any ill feeling or trouble?
A. No sir.
Q. Did Mr. and Mrs. Borden call you by some other name?
A. Yes sir, called me by my own right name.
Q. Did you have any trouble there in the family?
A. No sir.
Q. A pleasant place to live?
A. Yes sir, I liked the place.
Q. And for ought you know, they liked you?
A. As far as I know, yes.
Q. It was a pleasant family to be in?
A. I don’t know how the family was; I got along all right.
Q. You never saw anything out of the way?
A. No sir.
Q. You never saw any conflict in the family?
A. No sir.
Q. You never saw the least-any quarrelling or anything of that kind?
A. No sir, I did not…
Q. How was it this Thursday morning [the day of Mr. Borden’s murder] after they came downstairs?
A. I don’t remember.
Q. Didn’t they talk in the sitting room?
A. I heard her talk as she came along.
Q. Who spoke?
A. Miss Lizzie and Mrs. Borden.
Q. Talking in the sitting room?
A. Mrs. Borden asked some question and she answered very civilly. I don’t know what it was.
Q. When you heard them talking, they were talking calmly, the same as anybody else?
A. Yes sir.
Q. There was not, so far as you knew, any trouble that morning?
A. No sir, I did not see any trouble with the family.”
As these examples show, closely tied to short questions is the use of simple language. The purpose is to promote clarity so that the witness cannot find an excuse to evade the question. The use of vague language will only serve to encourage the witness to quarrel about the meaning of the words and thereby disrupt the flow of the examination. As Geoffrey D.E. Adair says in “On Trial: Advocacy Skills Law and Practice (2nd ed., Toronto: Butterworths, 2004), p. 345:
“Never use a two-syllable word where a one-syllable word will do. Counsel will no doubt impress themselves with a magnificent and wide ranging command of the English language, and they may even gain the admiration of their opponent; however, there is not much benefit to be had from an answer that does not capture the attention of the jury because they are still trying to figure out what the question means. The point, therefore, is that the questions ought to be put in plain, simple English. It makes them readily understandable to one and all concerned; furthermore, it gives the witness little or no excuse for failing to provide a very direct answer.”
Having emphasized the form of the questions, it remains that an examining party will not be able to take full advantage of an examination without listening to the answers. In “Cicero on Cross-Examination”, The Litigation Manual, 2nd ed. (Section of Litigation, American Bar Association, 1989) Irving Younger wrote about the importance of listening:
“From time to time a witness will say something extraordinary. It is contradicted by other testimony; it is contrary to human experience; it is inconsistent with the way the universe is organized. Yet the cross-examiner goes heedlessly on, as if somehow he hasn’t heard the answer. Correct. He hasn’t heard the answer, and the reason he hasn’t heard it is that he wasn’t listening, and the reason he wasn’t listening is that he was so immersed in his own fright that he had left no reserve of attention for listening to the witness. Fright is natural, but if the lawyer wishes to be a true advocate he must train himself to overcome it. Not that fright ever disappears. It does not. It must be mastered, however, controlled, limited, so that the cross-examiner can turn from himself and listen to the witness.”
One of the more famous recent lessons in the importance of listening arose during the examination of Bill Clinton during the impeachment process. Questioned before a grand jury, the President was asked to comment on answers given by his counsel in an earlier deposition in the Paula Jones lawsuit. The questioning went as follows:
“Q. The statement of your attorney, Mr. Bennett, at the Paula Jones deposition. Counsel is fully aware that Ms. Lewinsky is filing, has an affidavit which they were in possession of, saying that there was absolutely no sex of any kind in any manner, shape or form with President Clinton. That statement was made by your attorney in front of Judge Susan Webber Wright.
A. That’s correct.
Q. Your – that statement is a completely false statement. Whether or not Mr. Bennett knew of your relationship with Ms. Lewinsky, the statement that there was no sex of any kind in any manner, shape or form with President Clinton was an utterly false statement. Is that correct?
A. It depends on what the meaning of the word is means. If is means is, and never has been, that’s one thing. If it means, there is none, that was a completely true statement.”
This sequence of questions became immortalized, and endlessly replayed, as President Clinton dancing on the head of a pin: “It depends on what the meaning of the word is is.” What was not remarked upon however was the failure of the examiner during the earlier deposition to listen carefully and nail down the evidence, thereby opening the door to this response.
Finally, the importance of being persistent cannot be overemphasized. The witness must be made to understand that evasion will not be allowed to occur. If the witness does not answer the question, simply repeat it. And if that doesn’t work, the witness can be told that the parties will have to stay around all night, or until the cows come home, but you are going to insist on receiving a proper response. Admissions may have to be wrung out of the witness but, if the transcript is ultimately read in at trial, these tactics will not go over well with the judge or jury.
As with other aspects of advocacy, learning to control a witness comes with experience. I believe however that use of the principles referred to is at least a good place to start.