Preparing to Examine the Defendant
Tip #1: Don’t let the defence lawyer pick the deponent
In some cases the defendant is an individual such as the driver of an automobile and this tip won’t apply. But, in other cases such as LTD claims, claims against a municipality or a large company it is essential that you turn your mind to the question of who you would like to examine and that you don’t serve a notice of examine naming simply a representative of the defendant.
The rules let you name the representative in the Notice of Examination and this is a not something you should do lightly. Look at the documents and decide which employee or officer of the defendant is likely to have the best most direct evidence and name that person. This will of course vary case to case but if you let the defendant send a senior manager who has been through the litigation process before and who has no first hand knowledge of the issues in the case then your chance to conduct an effective examination is already significantly diminished before you’ve even started.
Tip #2: Make sure you have the documents
Well before the discovery, make sure you have asked for and received copies of the defendant’s schedule “A” productions and a copy of his or her affidavit of documents. In a straightforward motor vehicle accident case this may be little more than the MVA report and a copy of the defendant’s property damage file but each case is unique and it is essential that you have the documents in order to be prepared.
For example, in a slip and fall case make sure you have the sweep logs, procedure manual, and incident report and copies of any in store video surveillance before you begin. If you don’t have these documents, request them. If your case involves a contract make sure you have a copy of the contract in the defendant’s possession and don’t assume it is identical to the copy your client gave you at the start of the case.
Next, make sure you’ve done your work and that you have all of your client’s productions. In a personal injury action this means that you have to actively gather the client’s medical records, tax returns, employment file, and, in a motor vehicle accident case, the accident benefit file. Don’t wait to be asked for an undertaking at discovery to go out and get documents that you know will be relevant. By then you opportunity to ask questions guided by the documents will be lost and your ability to prepare your client forfeit. Get the documents you know the other side is going to ask for: it’ll make the entire discovery process more efficient and in the end it will help your case.
Tip #3: The Defendant’s schedule B
Look at it.
Just because you can’t ask to see the documents themselves don’t skim over the defendant’s schedule “B” and ask for a detailed schedule “B” in advance of the examination for discovery. There is a wealth of information in the schedule B that is discoverable. Remember you are entitled to the material facts disclosed in any statements or surveillance even if you can’t see a copy of the surveillance or the statement itself.
If there is a document listed in the schedule B that is not easily and readily identifiable by its description be sure to ask questions at the discovery so that you know exactly what it is and why it is privileged.
Tip #4: There are no shortcuts
It may seem obvious, but there really are no shortcuts to good preparation. It takes time. You need to be familiar with all of the documents and this takes time. Don’t just glance at the police report; read the witness statements. Don’t skim your clients medical chart reading only the typed portions; take the time to decipher the doctor’s handwritten notes.
If there are already expert reports in the file, read them from start to finish not just the conclusions. Good preparation takes time and questions will present themselves as you review the documents. If the defendant has produced a document that you are unsure how to read or that includes codes or acronyms then be prepared to ask a lot of questions at the discovery about the document and how to interpret it (don’t let your pride get in the way).
Set aside enough time to prepare and don’t leave it to the night before or the morning of the discovery.
Tip #5: Checklists
A checklist is a great tool but don’t rely on a standard precedent alone. Customize your firm’s standard checklist to the needs of your case and make sure that it includes any specific questions that arise out of your document review.
When in doubt, prepare more not fewer questions.
