Master Dash Discusses Counsel “Helping” Witness Being Examined for Discovery

In Madonis v. Dezotti, Master Ronald Dash discussed a practice problem that frequently occurs at examinations for discovery: counsel attempting to assist the witness by stating what he or she thinks the evidence should be. His reasons provide helpful guidelines for counsel in this situation.

The action arose out of a motor vehicle accident. The plaintiff was being examined for discovery. The Master said that the examination “fell apart” when defence counsel asked about the plaintiff’s work history. His counsel interjected, “It’s on this paper. Do you want to know an exact date?” There followed a lively exchange between the lawyers as to whether the examiner was entitled to insist on her questions being answered by the plaintiff himself, even if more precise or accurate information was available in a document or from the plaintiff’s counsel.

The Master set out a set of principles governing examinations for discovery and these are useful reading in themselves (see paragraph 16 of the reasons).

The Master then dealt with the problem posed in this case. He said that “there is nothing objectionable about a lawyer producing records to assist the examining party in obtaining a more complete and accurate history as long as the examining party does not object”. But here, counsel for the plaintiff persisted in his interruptions after the examining lawyer had made her objections quite clear and this, said the Master, was improper.

Master Dash also went on to say that, in his opinion, the plaintiff’s lawyer ought not to have said, “If you remember tell her, and if you don’t tell her you can’t remember.” He explained by analogizing the situation to cross-examination at trial:

In my view that was most improper. I appreciate Mr. Linett was concerned that his client could not remember exact dates and might give incorrect answers, but in light of Ms. Ramsay’s insistence that neither Mr. Linett nor his document come to the assistance of the plaintiff, Mr. Linett should have refrained from saying anything to his client. Those are the type of instructions a lawyer gives in preparing his client for an examination, but should not be stated once the examination has commenced, particularly in an atmosphere where Ms. Ramsay had continued to caution Mr. Linett about interfering. Clearly at trial, if the plaintiff is being cross-examined by defendants’ lawyer, plaintiff’s counsel cannot rise and tell his client “if you can’t remember tell her you don’t remember.” Similarly on an examination for discovery, plaintiff’s counsel cannot give those instructions and interfere with the defendants’ examination. In this case it appears that the plaintiff picked up on Mr. Linett’s cue since he stated, “I can’t remember exactly, but it’s on record if you need to know.”

The plaintiff was ordered to re-attend and answer questions in accordance with directions that were provided by the Master.

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1 Response to Master Dash Discusses Counsel “Helping” Witness Being Examined for Discovery

  1. marc binavince says:

    Why equate EFD w/ trial testimony? At EFD one can answer based on information, knowledge and belief while at trial saying what one has been informed of is not permitted if offered as proof of the contents of the statement. At EFD the question needs only a semblance of relevance.

    At trial a Judge could surely advise a witness not to guess or to say ‘I don’t remember’ if that is the right answer, if the circumstances warranted, so it’s really not relevant to EFD procedure that counsel at trial is not permitted to so advise.

    Answering on behalf of a client without permission from counsel is against the Rules however.

    In this case, what prevented defence counsel from simply asking the witness “do you really not remember, or are you simply saying ‘I don’t remember’ because of what your lawyer just said?”

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