Canadian Lawyer

LEGAL REPORT/Litigation ���You should often be questioning off the last answer not off of your next note.��� Richard Swan commercial litigation practice, says it���s wise to meet with your client before the discovery to go through all the documents with them. He also suggests taking your client through questions that will be asked. However, it���s also important to remind clients not to answer questions that aren���t being asked, says Weintraub. He means making sure they avoid long-winded answers or speeches. Part of that is being in control of your client, to which he suggests trying techniques such as asking straightforward yes or no questions, changing your tone of voice, changing your pace, etc. ���It���s like an artist���s painting: you need to paint but you also need to practise and in doing that you need to be conscious of techniques that you can use to improve the overall quality of the picture you���re painting,��� he says. You must also be ethical, says Swan. When going over the discovery questions with your client, you can���t suggest answers to them. One way to avoid this is if the client provides a misleading answer, simply repeat the answer back to them and ask if that���s what they meant, which usually clears up any ambiguity, he says. Let us open Examination in chief the right door for you We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law ���rm situated in the heart of Toronto. We are comprised of eleven lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal ��� Human rights ��� Labour relations/Labour law/Collective barganing ��� Workplace health and safety ��� Sexual harassment ��� Employment standards ��� Employment contracts ��� Canada Labour Code ��� Class actions ��� Mediation/arbitration/ADR www.kuretzkyvassos.com ��� 416.865.0504 44 April 2013 uretzky_CL_May_11.indd 1 www.CANADIAN Another point emphasized by the panellists was the importance of listening to your client���s answers during discovery. ���Among younger counsel, you see it very often that they will come into a discovery . . . they will have a list of questions, they���ll ask a question, and then they will start looking at their notes to see what their next question is so they���re prepared and articulate it well, and they���re not listening to the actual answer that the witness is giving,��� says Swan. ���You should often be questioning off the last answer not off of your next note.��� And most importantly, ���don���t be on your BlackBerry!��� warns Swan, who has frequently seen lawyers checking their phones while their client is answering a question. Another point to note is not to be afraid of unhelpful evidence that���s revealed during the discovery. ���If the other side starts to give evidence that���s very unhelpful to your case, it���s important to pursue that evidence with vigour and get the witness��� whole story ��� even though it���s unhelpful to you ��� so that you���re not surprised by it at trial,��� says Swan. Most panellists warned against bringing a list of questions to the discovery. Swan says you shouldn���t be wedded to a script as you need to go with the flow. Instead, he suggests writing point-form notes and then reviewing them at the end of the discovery to ensure you���ve covered everything. L a w ye r m a g . c o m Alfred Kwinter compares the examination in chief to storytelling. A founding partner of Singer Kwinter, he says it���s important to ask short, clear, concise questions, and present them in an orderly manner. Think to yourself, he advises: ���How is this witness going to help my case and can this witness hurt my case?��� Ontario Superior Court Justice E. Eva Frank shares her insight as a judge and offers some pointers to litigators. It���s ���enormously challenging��� to stay focused on the testimony as the acoustics in the courtroom are terrible with no amplification system, she says, so judges are often left straining to hear the testimony. So lawyers should speak loud and clear, and instruct clients to do so as well. Speaking slowly also helps since judges are trying to listen to the testimony while taking notes. ���Preparation is critical,��� says Frank, so ensure your witness knows what is expected of them in court. It is also wise to instruct your witness not to start answering a question until counsel is finished asking it as it can interrupt the flow of the testimony and throw off the judge. The judge also advises counsel not to use a script, but to ���be cautious about asking your witness unnecessary questions,��� which is why it���s so important to listen to their testimony. She said it also helps if you tell the judge what the purpose of the witness��� testimony is to provide some context. Frank explains the biggest revelation she had when joining the bench was the disconnect between the information the 4/14/11 10:32:23 AM

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