As a client you may be called upon to give evidence for your own case both at Examinations for Discovery and possibly at Trial (96% of cases settle before Trial). Examinations for Discovery may be seen as the middle step in the Trial process. You may be called to give evidence at the Special Examiner’s office under oath. The opposing lawyer or lawyers will be entitled to ask you virtually anything about your case and your background, your future expectations and the damages that we are claiming on your behalf. It is important to note that this is evidence which is in the nature of a cross-examination. In other words the lawyer asking the questions can suggest the answer to you in the question. If you end up having to try your case, you will be asked questions In Chief i.e. in support of your own case when you are called by our firm. As your counsel we can’t suggest the answers to you which is the difference between Examination in Chief and Cross-examination. At Trial, once we have helped you give your evidence before the Court opposing counsel will be entitled to cross-examine you. It is important that you follow the suggestions below as to how to deal with questions both In Chief and Cross-examinations at either the Discovery proceeding or the Trial proceeding.
The impression that you create whether being asked questions In Chief or on Cross-examination is critical because the Trier of fact (the Judge or the Jury) must identify with you. We identify with people we like. There are many things that encourage the process of liking someone. The most important thing is to be absolutely candid and honest about all things at all times. This will reduce the possibility of getting caught up in contradictions or apparent contradictions between your evidence, documents that may exist in the litigation including clinical notes and records, letters, emails, etc. It may also assist you to avoid contradicting yourself or apparently contradicting yourself between the transcripts of evidence taken at Discoveries and the evidence that you give at Trial. This will reduce the risk of your looking not credible. Being candid includes admitting things that are true even if they may apparently hurt your interests.
Aside from being candid and truthful it is exceptionally important to be polite and respectful. This is important even when the opposing counsel is asking the questions. So many clients cannot resist arguing with defence counsel during Cross-examination, being sarcastic or responding to a question with another question. Just answer the question fairly and fully. You are not restricted to a yes or no answer on Cross-examination but it is important that you fairly and fully respond to the questions you are being asked without hesitation, exaggeration or tailoring the answer.
It may in fact be a strength in your evidence to simply answer the question that is asked and being willing to admit an answer that is not helpful to your case. If it is the truth that is the case we have to deal with. To suggest otherwise may reduce your credibility. When a Plaintiff concedes a point that helps the defence, the Trier of fact will respect the client/Plaintiff for his or her candor.
Impeachment of your Credibility
It is important to think of the entire Trial process as a continuum rather than as a bunch of separate steps. Accordingly you must recall that opposing counsel will have either prior to Discovery and Trial or at the Discovery and Trial access to all of your records that are relevant to the action. This includes clinical notes and records, emails, letters, recordings, photographic images, social media accounts such as Facebook and transcripts that will be prepared from the evidence that you give at Examinations for Discovery.
Clinical notes and records and medical reports are a particularly important matter to recall. When you attend at your physician or with an expert for the purposes of obtaining opinion evidence it is important that you tell the expert or doctor of all of your complaints every time that you attend with them or any other healthcare provider. Defence counsel will be reviewing all of these clinical notes and records, hospital records, medical reports. If your evidence is different either at Examinations for Discovery or at Trial defence counsel will draw the record to your attention and ask you to explain or point out to the Court the inconsistency in the facts as recorded in the Discovery transcript or clinical notes and records and the evidence you are giving at Trial. This has the impact of reducing your credibility if properly done.
Clinical notes and records should be reviewed by you prior to Examinations for Discovery. Many clients forget that they had a mishap that resulted in some minor injury which resolved itself. For example, someone falling off their bike two or three years prior to the accident may not recall that they injured their knee or some component or some body part which is being reinjured and is the subject matter of the litigation. To say on the record at Examinations for Discovery or at Trial that you had not such injury may in fact be a function of your failure to remember the event but it will be viewed as an issue in terms of your credibility. The Trier of fact will consider that you either don’t have a reliable memory or that you are not being candid or honest. For these reasons it is important to tell your physicians about all problems at all times and to review your clinical notes and records, hospital records and other documents prior to Discovery if possible. Refreshing your memory from documents is not improper and should be admitted to if asked when you are being cross-examined. For example, at Trial you may be asked if you reviewed your Discovery transcripts. All lawyers in preparation for Trial advise their clients to study and review their transcripts. This is not because this is a skills memory test but rather to make sure that your memory is refreshed as to what was said in a clinical note and record, email, document or in a Discovery transcript.
Access to these records makes it imperative that you are scrupulously honest about pre-morbid history. You cannot exaggerate, even a bit as this may be brought out against you. You must be 100% truthful about the extent of any impairments or injuries. It is imperative that candor be used by you at every opportunity and stage of the litigation. This will encourage settlement and success at Trial if Trial becomes necessary. The defence will also have all your school and employment records if they are relevant including performance reviews and records of issues that you had at work or in your personal life. Remember honesty is always the best policy in the Trial process because over time, your memory of what transpired is not likely to change. It may erode.
It is important to remember that all stages if you don’t remember the answer to a question or you don’t know the answer to the question then the proper answer is “I don’t know” or “I don’t remember”. Never guess although giving a fair and reasonable estimate may at times be appropriate.
If you have never testified in Court before it is important that you know how to dress and behave. Dress as if you were going to your place of work or business or for a job interview. This demonstrates your respect for the Court and the process that you are undergoing.
When addressing the Court use Sir, Ma’am or Your Honour. When addressing opposing counsel likewise you should use the words Sir or Ma’am during Cross-examination. Never raise your voice, lose your temper or get angry as this will impeach your credibility.
Standing when being examined at Trial is probably the best policy as this will allow you to project your voice. It will also reduce the risk that you may feel intimidated if you are sitting.
Advice For You When Being Asked Questions By Your Lawyer (Examination in Chief)
Expect to be nervous when you begin your testimony. Like a school play the nervousness will disappear once you get started. The introductory questions are easy as they are everyday information such as name, address, marital status, number of children, etc.
- when being examined the introductory portion of it is designed to let the Court and the Trier of fact know who you are. Having a family, job history, status in the community, reliability all helps the Court to develop an image of who you are and develop respect for you.
- only answer the question that is asked. Resist the temptation to go on to answer other questions.
- if you don’t understand the question say so.
- if you are in discomfort because of injuries when it truly becomes difficult for you to stand or sit it is appropriate to ask the Court if you can stand or sit or if necessary, take a break. This privilege should not be used unless it is truly necessary. People can read phoniness a mile away.
- speak clearly and loudly enough so that somebody in the back row of the Courtroom can hear you. If you don’t remember, say you don’t remember.
- if you don’t know, say that you don’t know.
- if you are nervous your tendency will be to speed in your answers. Try to be conscious of this and control your speed to the best of your ability and speak up.
Advice for Cross-examination
Concerning Cross-examination the following are some guidelines:
- you are not required to say yes or no. You can fairly and full answer the question. In other words if there is more to the answer to fairly help the Trier of fact to understand the information being asked about then describe the same;
- you are entitled to give the complete answer. If the cross-examining lawyer cuts you off then politely ask the Judge if you may finish your answer. If you don’t remember then you don’t remember; if you don’t know, you don’t know; if you are not sure, don’t guess;
- if something is put to you in the form of question, admit that it is true, if it partially true, admit that it is partially true and explain the full answer fairly to the question;
- never argue with defence counsel, be sarcastic or rude;
- never answer a question with a question unless it is a request for clarification of the question;
- always under every circumstance, even if you are being spoken rudely to, be polite and respectful to everyone in the Courtroom including opposing counsel.