Examination for Discovery: What Can I Expect?
How to Prepare for Questioning and What to Expect
An examination for discovery, or Questioning, is a pre-trial process that either party can call to ask questions to the opposing party. In family law the process is useful but not mandatory. The timing for a Questioning is prior to a trial or arbitration hearing. Questioning is one of the procedures established by the Alberta Rules of Court and is designed to assist parties in discovering the details of the other side’s case, promote settlement and save expensive trial time later. This process takes place privately, outside of court, in a board room setting. Questioning is a fact-finding mission, obtaining facts from the mind of the witness. Since the conversation can be used in trial, the answering party is under oath for the duration. Often in family law, two questionings will take place back to back, so each party can be questioned efficiently.
Why would a Questioning be scheduled?
Since it’s a rare chance to learn about the opposing party’s case, the questions revolve around what the other party as to say about the matters in issue in the lawsuit. It can save trial time by identifying any areas of agreement in the case and obtaining further documentation from the other party. The person conduction the Questioning may be looking to obtain admissions from the other party and/or assess the other party as a witness.
Who can attend a Questioning?
Questioning involves both parties, their individual counsel and often a court reporter. A party’s right to attend will only be limited when there is suspicion of intimidation. There is a very narrow scope for a non-party to attend. These circumstances include the party having special needs requiring a support person, or the non-party being an expert in a specific production. In both of these cases, both parties must consent to the third-party being present. In recent caselaw there has been an increase in these circumstances. These complicated cases are extenuating circumstances, but these third-parties were found essential to making the case more efficient for court.
What does a Questioning look like?
The process starts with a court reporter swearing in the person being questioned. The court reporter will record and transcribe everything said, so it is essential that the evidence offered in court is the same as the evidence in the questioning. All questions must be answered truthfully, and counsel has the right to object to questions that are not proper. Questioning lawyers may use a variety of styles in their questioning, and it’s important to keep in mind that they are acting in their client’s best interest. Throughout, the person being questioned can refer to documents that were brought in. Undertaking is a process in which counsel requests documents that aren’t currently with you at questioning. These requests can also be objected to by a lawyer.
Disclaimer: The content provided in the blog posts of Jones Divorce & Family Law is general information and should not be considered legal advice. Please contact a lawyer for legal advice tailored to your specific situation. All articles are current as of their original publication date.
