Monday, July 16, 2012

Written Examination for Discovery:Economical & Effective

     While in California a few years ago I learned a most valuable little lesson.  I was introduced  to written examinations for discovery.   Rule 35 of the Ontario Rules of Civil Procedure provide for written examination for discovery.  I have since found that the time spent preparing for the oral discovery and then attending and asking the questions exceeded the time spent drafting the written questions. I can typically draft 100 - 150 questions within five hours or so.  Once those questions are drafted they are served on defence counsel and that is the end of my examination until I receive their answers in a sworn affidavit.  Compare and contrast this to the 5 hours plus of preparation for an oral discovery followed by additional 5 hours plus of oral discovery and add to this the examiner's attendance fee and the cost of the transcripts.  The written discovery can easily be done for under $1,500 while the oral discovery will easily cost double that plus the cost of the examiner's attendance fee and the cost of the transcript.  At the end of the day you are looking at $1,500 compared to a figure close to $5,000.  Of course,  this cost differential is nothing for lawyers representing defendants but significant when you are asserting the rights of individual against a corporate defendant or the state.

     Like any other aspect of trial preparation, written examination for discovery will only be successful if properly planned and executed.  Organize your questions into categories which relate to the material facts asserted in your statement of claim.  For example, under a category entitled "general backgroud" I like to ask questions going towards establishing the party that is being sued, insurance coverage for the claim and if it is an employment claim questions establishing the employer-employee relationship, tenure and the reason communicated for the dismissal.  Where the action involves one or more causes of action I will divide the questions into those causes of action.  For example, if it is negligence claim I will ask a series of questions under a subject-headed "negligence".  Where the claim involves negligence in terms of the acts and omissions of an employee or agent in conducting for example a workplace investigations or the like I make it a point to have the employer or their representative ask specific questions of the investigator.  It has been my personal experience that defence lawyers have a tough time with these type of questions and written examination for discovery generally.  It seems to make them work for their money and this is exactly what you want as a plaintiff lawyer. 

     The other bonus about written examination for discovery is that it is much easier and significantly more economical to prosecute undertakings and refusals since your answers are in the form of an affidavit and therefore you will not need to provide a transcript to the court, the defendant and for yourself.  Again, this is a huge saving for lawyers representing ordinary individuals.  In my experience, the cost of transcripts alone for such a motion can easily be $2,000.


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