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Tips for Preparing your Witness for Discovery

09 Mar Tips for Preparing your Witness for Discovery

By: Dan Dooley

Published: March 9th, 2017

Dan Dooley spoke at The Advocate’s Society sponsored event “Mastering Winning Discovery Techniques” on October 31st, 2016.


Three scenarios

  1. the undisclosed document 

The plaintiff is testifying at a personal injury action. Defence counsel has taken the plaintiff through the documentary evidence as disclosed in the plaintiff’s Affidavit of Documents. After doing so, defence counsel asks the plaintiff what he did after the accident. The plaintiff responds that he sent a text message to a family member. The text message is not listed in the plaintiff’s Affidavit of Documents. Defence counsel asks plaintiff’s counsel why there is no reference to this electronic document in the plaintiff’s Affidavit of Documents. Plaintiff’s counsel responds: “this is the first I have heard of it.” Plaintiff’s counsel refuses to undertake to produce the document, because plaintiff’s counsel has never seen it. He does not know what his client wrote. He wants to see it so takes the requested undertaking “under advisement” although the text is obviously relevant. A motion ensues. Plaintiff’s counsel is embarrassed in the face of the court for not knowing of an obviously relevant document.

  2. the un-reviewed document

a) Defence counsel is examining the plaintiff for discovery in a professional negligence action. The plaintiff alleges that he was never warned by his advisor of the risks of closing a purchase. Defence counsel produces a text message warning of just that. The plaintiff testifies that he has never seen the document even though it is listed in Schedule “A” of the defendant’s Affidavit of Documents and has been produced to the plaintiff’s lawyer.  After reviewing the document, the plaintiff testifies unconvincingly that he must not have ever received it.

b) In another personal injury action, the plaintiff is being asked about his ability to work outside the home:

Q. Do you have any work capacity at all?

A. Not at this time, no; with a level of pain that I have, no.

Q. You go to see Dr. (omitted) for treatment?

A. Yes

Q. You follow her recommendations?

A. Yes. A. No, I did not know that that was said.

Q. Okay (shows the plaintiff the doctor’s clinical note for a certain date). She seems to think that you are capable of working part-time. Do you know that?

A. No, I did not know that that was said.

3.     “Woodshedding”

The defendant is asked to describe the events in issue. She testifies to a series of events. She is confronted with a statement she gave some months previously which is inconsistent with her testimony on discovery.  When plaintiff’s counsel asks the defendant to explain why her testimony on discovery is different from what she said some months earlier, she responds:  “my lawyer explained to me that what I had said at that point was not really accurate, and that this is what I should say today.”

The importance of examinations for discovery cannot be over-stated 

Cases are won and lost at the examinations for discovery. Examination for discovery has been described as the single most important contribution to the success of litigation.[1]  This applies not only to your examination for discovery of the opposing party, but also to your client’s examination for discovery.  John Olah wrote in The Art and Science of Advocacy:

Do not underestimate the importance of your client’s examination. It can offer important insights into your opponent’s case. The questions may disclosure your adversary’s theory of the case and how he intends to prove it at trial. The examination will also allow you to assess the competence of your opponent. But more important, the examination will help you measure how your client will fare under cross-examination at trial. It may also reveal weaknesses in your client’s testimony. Always listen carefully to, and analyse, your client’s examination with these objectives in mind.[2]

Thorough preparation of your witness is therefore essential. You want your client to put his or her best foot forward. The following paper provides an overview on how to prepare your client and identifies some of the ethical pitfalls along the way. Attached as appendices are a number of precedents that we hope you will find useful in your preparations.

Get all the documents

We stress to our clients the need for all the relevant documentary evidence:  the client is told that we need every “scrap of paper”, every text, every email, every social media posting.  We demand the same from opposing counsel.  We almost always refuse to schedule discoveries (unless the client instructs us to the contrary) until we are satisfied that we have full documentary disclosure from the opposing litigant(s).

We report to the client in writing concerning the documentary evidence. We ask the client to comment.  We review any questions or concerns.

By the time the client is examined for discovery, there should be no surprises. The client should never testify that she or he is seeing a document for the first time.  The client will have already discussed with you the client’s evidence with respect to any specific document and particularly those that appear inconsistent with the client’s version of events.

Write to your client

Once the discovery has been booked, notify your client. Confirm who will be attending with the client at the client’s examination for discovery.  Confirm when you will meet to prepare.

Our sample letter is attached as Appendix “A”. We also send the client a “Discovery Attendance Confirmation Form” that we ask the client to sign and return. We never want a client’s non-attendance at the client’s examination for discovery to be attributed, rightly or wrongly, to our failure to notify the client as to when and where the client is being examined for discovery.  Our sample “Discovery Attendance Confirmation Form” is attached as Appendix “B”.

We include with our letter a more detailed summary on what to expect, how to prepare and how to give evidence. Our summary, at Appendix “C”, is modelled on John Olah’s suggested memorandum to client in The Art and Science of Advocacy.[3]

Our instructions include reference to “helpful tips”. In reality, these are not “tips” or suggestions.  They are “rules”, even if we do not call them such so as to avoid causing undue stress to the client (“I must remember the rules”) at an early stage of the lawsuit.  We reiterate and emphasize the “rules” when we meet with the client to prepare for the client’s examination for discovery.

Meet with your client

Of course, the lawyer who will attend with the client at the client’s examination for discovery must meet with the client before the client is examined for discovery – and, if at all possible (and it should almost always be possible) – not just the morning of the discovery. Clients are anxious.  Part of the task is to reassure and relax the client.  The client should not be left to fret about what is for many an unfamiliar and unsettling process notwithstanding your previous communications to the client concerning the process.

Indeed, and particularly where the documentary evidence is extensive, you will need to meet with the client for a lengthy period of time and/or on several occasions to prepare. These meeting should be scheduled for as soon as there is sufficient documentary evidence to review and again as the client’s examination for discovery comes near.

Review the logistics

As noted, many clients have never been examined for discovery. Depending on the client’s level of sophistication and experience, begin by explaining the basics. Explain that discovery is not a court hearing in front of a judge but rather takes place in a board room, describe the room set up and outline the different people who will be in attendance – you, the other lawyer and a court reporter. Describing these seemingly trivial details can go a long way to help a client feel more at ease.

Explain to the client that before the questions start, he or she will be asked by the court reporter to swear or affirm that their evidence will be truthful. Remind the client that the evidence is being recorded by the court reporter and may later transcribed and that hand gestures, head shakes, “umm” and “ahh” do not translate well on a written transcript.

Explain the purpose of discovery

Once you have set out the logistics, explain in more detail about the nature and purpose of discovery.

Discovery helps each side understand the strengths and weaknesses of their respective cases. Explain that the objective of discovery is for each side to learn more about the evidence so that no party is surprised at trial. Because of this, unlike on TV or in the movies, in most cases, there is no “smoking gun” moment in the courtroom.

Emphasize to the client that their answers will be under oath. Explain that one of the purposes of discovery is to obtain admissions under oath which may be used against the client at trial.

Also explain that one of the purposes of discovery is for the opposing counsel to the client’s strengths and weaknesses as a witness. The client should present as trustworthy and likable. Making a good impression may encourage settlement.

Confirm your role. You cannot help the client to answer the question, but you may object to a question.  Tell the client that if you object, they must stop speaking until the objection is on the record and any discussion between counsel concerning the objection is completed.  Explain to your client that you cannot speak to them about their evidence on breaks, etc. once the examination is underway.[4]

Be mindful of your professional obligations. Rule 5.1-3.1 of the Rules of Professional Conduct provides:

Discovery Obligations

5.1-3.1 Where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate

(a) shall explain to their client

(i) the necessity of making full disclosure of all documents relating to any matter in issue, and

(ii) the duty to answer to the best of their knowledge, information, and belief, any proper question relating to any issue in the action or made discoverable by the rules of court or the rules of the tribunal;

(b) shall assist the client in fulfilling their obligations to make full disclosure; and

(c) shall not make frivolous requests for the production of documents or make frivolous demands for information at the examination for discovery.[5]

Review “the rules”

Review the “rules” you communicated to the client when you introduced the client to the litigation process. As noted, you will want to reiterate, and emphasize, these “rules”:

  • The client must always tell the truth – no exceptions;
  • The client must listen carefully to the question. If the client does not understand the question, the client should so indicate. You will tell the client that if this occurs, you will ask for clarification. You will tell the client that you will intervene if a “question” is, in reality, a series of questions that opposing counsel should break down. You will tell the client that you will object if a “question” is, in reality, a submission or argument that should be saved for the courtroom. You will object if the question is based on a false premise or assumption;
  • The client must always let opposing counsel finish asking each question. The client must then think about the question and then answer. A discovery is not a race. It is a time for thoughtful consideration. Advise the client that the transcript does not show how long the client paused before answering the question and that you will intervene if opposing counsel suggests on the record that any inference should be drawn from the length of time it took the client to answer;
  • Emphasize to the client that the preferred answer is a short answer so long as it is responsive to the question. Tell the client to answer completely, but as succinctly as is appropriate. Tell the client that she or he is not required to explain or justify an answer;
  • The client must be cautioned against “rambling” answers, storytelling or lengthy narratives, conversing on the record with or engaging on the record in banter with opposing counsel;
  • The client must be told on a “no exceptions to the rule” basis that the client must never argue with opposing counsel, never insult opposing counsel, never disparage anyone, including the opposing litigant(s) or unfavourable witnesses, never be sarcastic, never be evasive and NEVER lose your temper. Always be polite. Always answer the question;
  • The client should be told that lawyers have different styles of questioning.   Most will want to portray themselves as confident. This may take the form of aggressive questioning, a skeptical demeanour, engaging in conversation or even feigned (or sometimes real) bumbling. The client must be told to ignore opposing counsel’s demeanour and focus solely on listening to the question, answering it as succinctly and completely as possible and leaving to you any objections or interventions that become necessary because of counsel’s behavior;
  • The client must be told that “telling the truth” includes testifying “I don’t know” or “I don’t remember” if this is the truth and never to speculate or guess;
  • The client must be told, and must practice with you, distinguishing between what the client knows firsthand (direct knowledge) as against what the client has been told or believes for some other reason that the client will discuss with you;
  • The client must regard as another “no exceptions rule” that the client must never answer a question that is not asked; that to do so gives the appearance of the client wanting to argue the case or desperately wanting to persuade opposing counsel or litigant – either of which diminishes the client in the opposition’s eyes.

You should tailor your “rules” to your client’s personality.[6]  For example, a nervous and unsophisticated witness will likely need lots of explanation and reassurance.  You will want to emphasize to this type of witness that you will help them prepare and by the time that the preparation is complete they will feel more comfortable and more confident.  By contrast, a more self-confident or arrogant personality may need to be reminded that they need to focus on answering the questions put to them, not argue with opposing counsel, etc.

In my experience, professional litigants, particularly when they are defendants, need to be told and then reminded that they are not to argue their case in answering questions on discovery, any more than they are to argue their case in the witness box if the case goes to trial.

Similarly, if you have past experience with opposing counsel, tell your client how counsel generally conducts his or her discovery. If opposing counsel has an aggressive style, the client may need to be reminded to keep their cool. By contrast, if in your experience counsel is more laid-back and likeable, explain that a standard technique is for counsel to be friendly to put the client at ease and caution them from volunteering too much information as a result.

Preparing the witnesses

Once the client is oriented to the logistics, purposes of discovery and the “rules” for giving evidence, you will review the facts of the case from the client’s perspective. You will have already developed your “theme” of the case.  Review the pleadings.  Review once again all the relevant documentary evidence.  Discuss the client’s evidence in relation to each document.  Highlight key issues and potential questions on who, what, where, when and why.

Review in as much detail as necessary every critical document. The client’s prior statements must always be reviewed and discussed in the context of the pleadings, the client’s version of events and your theme of the case. Bring the client’s attention to passages in any document or statement that might be the subject of examination.  Consider documentary and other evidence from the perspective, and anticipated theme, of the opposition.  Prepare your client to answer questions in the manner that the question is likely to be framed or phrased by opposing counsel.  Discuss in as much detail as possible, and for whatever time it takes, any information from your client that is not, or appears not to be, consistent with any single piece of documentary or other evidence (for example, the client’s prior statements, the evidence of apparently independent witnesses or the assumptions on which experts have based reports).

Some documents contain highly sensitive information. For example, medical records may include reference to issues of sexual intimacy, substance use or emotional vulnerability.  Prepare your client for the possibility, or probability as the case may be, that personal and perhaps embarrassing questions may be asked.  Ask the questions yourself, assuring the client of the utmost confidentiality between you.  The documentary evidence must be reviewed with the client even if irrelevant to the issues in the pleadings, if only to alert the client to the possibility that a question may be asked on a matter of sensitivity.  Reassure the client that you will be right beside them to object to any question that calls for an answer that is not relevant to the case as pleaded.

Reassuring the client in this regard will help the client remain composed if irrelevant questions are asked as to matters that are sensitive to the client.

Some authors recommend questioning the client as if you were conducting a mock examination. We do not generally conduct a full mock examination but we do ask the client pointed questions on areas that we would expect opposing counsel to explore so that the client is prepared to respond to any apparent inconsistencies in those documents or prior statements.

Ethical Issues – Proper Preparation or “woodshedding”

The client’s paramount obligation to “tell the truth”, and counsel’s obligations as an Officer of the Court are to be understood in the context Rule 5.1-2 of the Rules of Professional Conduct:

When acting as an advocate, a lawyer shall not……..

(j) improperly dissuade a witness from giving evidence or advise a witness to be absent,

(k) knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another,

“Woodshedding” (or “horse shedding”) is said to have its origins in the era when wood and/or horse sheds were located next to or near the local courthouse. Lawyers used the nearby shed as a place to talk to witnesses before trial.[7]

The term is now used to graphically describe lawyers who unethically instruct a client or independent witness as to the “proper” testimony to give.[8]  In essence, the witness is “coached” by counsel to testify in the manner most favourable to that counsel’s case.

Master McLeod, as he then was, has described telling a witness what answers to give as “the gravest impropriety” and explained:[9]

There is a clear distinction between proper preparation assisting the witness to understand the issues and the documents, the nature of questions that will be asked, reviewing the documents and referring the witness to material that will refresh or assist his or her memory and improper “woodsheding” in which the answers are provided or suggested.[10]

Woodshedding is sometimes suspected, but difficult to prove because of solicitor-client confidentiality. Perhaps not surprisingly, there are few cases addressing the issue.  In one case, the court refused to remove two prosecutors despite a concern having arisen as to “woodshedding”, noting that “to reach such a conclusion, the court would have to adopt a speculative conspiracy theory without evidence to support it.”[11]  On the other hand, an Immigration and Refugee Board appeal adjudicator concluded after reviewing the documentary evidence and the oral testimony that certain witnesses’ evidence “appears well-rehearsed, carefully scripted or they are well woodshedded or both”.[12]

Woodshedding your client is unethical. But woodshedding is very different from preparing your client to be confronted with unfavourable independent evidence, inconsistencies in the client’s previous statements or contradictions in the documents – not so as to tell the client what to say but, rather, to ensure that the client has a thorough understanding of the issues, the documentary and other evidence and potential areas of questioning.

Privilege and the review of prior written statements or other documents

Reviewing privileged documentation to refresh the witness’ memory in preparation for examination for discovery does not amount to a waiver of the privilege.[13] For example, in Knox v. Applebaum Holdings Ltd., the court confirmed that a written statement made by the defendant’s property manager to her insurer was litigation privileged. [14] The court went on to hold that the privilege was not waived by the witness’ review of the statement prior to her examination for discovery.[15]



October 31, 2016


John Smith, President

Hotel Transylvania Group, North America Division

Toronto, ON


Dear Mr. Smith:


Re:             Hotel Transylvania Group, North America Division ats Jonathan Harker                  

                  Our File No.:  12345


We confirm that your Examination for Discovery has been scheduled for Friday, January 13, 2017 commencing at 10 a.m. The discovery will take place at Top Notch Court Reporting Services, 10 Any Street, Barrie, Ontario.


An Examination for Discovery is a pre-trial hearing at which the parties being examined give their evidence under oath. The facts learned during the examination for discovery process, either documentary or oral, are to be kept confidential and not disclosed except to us when answering questions or otherwise participating in judicial proceedings in this litigation, such as your examination for discovery, at mediation or at trial.


Closer to the date, we will call you to schedule an appointment for me to meet with you to prepare you for your discovery.


In order to assist you in preparing for your upcoming examination for discovery, we enclose Examination for Discovery Instructions for your review and information. We will discuss this further when we meet.


In the meantime, please return the enclosed Discovery Attendance Confirmation form in the enclosed self-addressed, stamped envelope at your earliest convenience.


Yours very truly,





John Smith, President

Hotel Transylvania Group, North America Division

Toronto, ON


Re:             Hotel Transylvania Group, North America Division ats Jonathan Harker                  

                  Our File No.:  12345


I confirm that I will attend on the examinations for discovery arranged for for Friday, January 13, 2017 commencing at 10 a.m. at the offices of Top Notch Court Reporting Services in Barrie and will attend at the reporter’s office on that date at 9:30 a.m.



DATED this                  day of                                      , 2016.



John Smith



(Contact Phone Number)


Please include your telephone number so that we may contact you in the event of any change or cancellation on short notice)





We will be meeting with you shortly to prepare you for your examination. At the meeting, we will explain the discovery process to you in more detail and go over your testimony with you.  We will also explain to you at that time your obligations at the discovery.




Most cases settle before trial. The examination may be the only occasion on which you will meet the opposing lawyer.  It is important that you create a favourable impression.  The lawyer will be judging you not only on what you say, but also on how you appear.  He will be assessing how you will conduct yourself at trial and your honesty, truthfulness, and your appearance.  For this reason, you should be dressed appropriately, as though you were attending a formal occasion.




  1. Be full, fair, and honest in your answers. First and foremost, tell the truth.  Do not try to help your case by embroidering your evidence; this will only hurt you. The worst mistake you can make is not to tell the truth.
  2. Do not guess. If you are unsure about an answer, tell the examiner that.  Err on the side of caution.  Be conservative in your answers.  It will be difficult to change your evidence later, and you will have to explain why you have changed your testimony.  Stick to the facts.
  3. Do not volunteer information. However, be sure that you have conveyed your point to the examiner fully and fairly.
  4. Be polite and respectful.
  5. Do not lose your temper. Some examiners will try to bully you, hoping to make you angry and to obtain a bad answer.  Do not fall into this trap.  We will be with you throughout the examination to assist you.
  6. If you do not understand or if you did not hear a question, ask the lawyer to repeat or to rephrase his question. Take all the time you need to answer the question.  If you are unable to give the answer but you have some means of acquiring the information, we can undertake to give the answer at a future time.
  7. Many of us suffer from the bad habit of not listening to the question or not answering the question that is being asked. Listen to the question carefully.  Answer the question; do not give speeches.
  8. Trick questions. One of the favourite trick questions is whether you have discussed your testimony with anyone before coming to the examination.  In preparation for the examination, you will have discussed your evidence with your lawyer; this is not only normal, but perfectly proper.  Do not be afraid to tell the examiner this.  However, you are under no obligation to tell the opposing lawyer what was discussed.
  9. You may be asked to give estimates. Most of us are not very good at giving estimates.  Do your best.  Be sure that you tell the examiner that it is only an approximation.
  10. You may be asked about any statements, testimony, or documents you prepared on an earlier occasion about the case (lawyers call these “previous statements”). If what you said on the previous occasion was true, tell the opposing lawyer.  If, for some reason it was mistaken, do not be afraid to point this out to the examiner.
  11. Your lawyer will be with you throughout the examination to protect your interest. His or her function is to make sure that you are not asked any improper questions.  If your lawyer objects to a question, listen to the objection and follow his or her instructions given to you.  You cannot consult with your lawyer during the examination.
  12. Speak slowly and clearly. Remember that the reporter is trying to record every word you say.  The reporter cannot record a non-verbal expression such as shaking your head or motioning with your hands.
  13. Do not memorize your testimony. All that is expected from you is your best recollection.


[1] F. MacIsaac, “Examinations for Discovery” (1967) 10 Can. B.J. 224, cited in J.A. Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) (loose-leaf) Vol. 1,ch. 5 at 5-4 – 5-5 [The Art and Science of Advocacy]. The Art and Science of Advocacy at 5-78 – 84 is an excellent resource, as is Martha Sandor, “Discovery Practice: Preparing your Witness for Discovery” (Paper delivered at the Continuing Legal Education Society of British Columbia’s Discovery Practice program, Vancouver, May 2013).

[2] The Art and Science of Advocacy, ibid at 5-12.

[3] Supra note 1 at 5-78 – 5-81.

[4] The Law Society of Upper Canada, Rules of Professional Conduct, Rule 2.

[5] Ibid, Rule 5.1-3.1.

[6] Martha Sandor, supra note 2, describes five categories of client – The Nervous Ned, The Know It All, The Don’t Worry, Be Happy, The Seriously Injured and the Perfect Witness – and provides helpful tips for each: p. 1.1.3-4.

[7] E. Carter, Horse-shedding, Lecturing and Legal Ethics <,%20Lecturing%20and%20Legal%20Ethics.pdf>

[8] R. v. Maragh, 2003 CanLII 23212 (ON SC) at para. 37 [Maragh]

9 Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2006 CanLII 35616 (ON SC) at para. 18.

[10] Ibid, at fn 11.

[11] Maragh, supra note 8 at para. 37.

[12] Khan v. Canada (Citizen and Immigration), 2009 CanLII 80820 (CA IRB) at para. 37.

[13] Wroniak v. Allstate Insurance Co. of Canada, 1997 CarswellOnt 424.

[14] Knox v Applebaum Holdings 2012 ONSC 4181 (CanLII) at para. 6-8.

[15] Ibid at paras. 9-14.