A Day (or Six) of Discoveries

In July, I had the opportunity to attend six days of Discoveries on a product liability file where millions of dollars were in dispute. Discovery is a court-mandated fact-finding process where lawyers question experts, witnesses, and parties to the litigation. For those six days, it was my job to take copious notes while the lawyers for the plaintiff and eight defendants questioned a new product expert or manufacturer each day.

The lawyer for the plaintiff would be the first to ask questions, followed by the other eight. 

"Watching that many lawyers for six straight days displayed the different types of interviewing styles."

Some were very methodical and did not like the witness to veer off topic when answering, while others were game to go down tangents and rabbit holes. Some were super friendly, and one took a more adversarial approach. All were very effective and showed me I can find the style that best suits me.

The questions showed me that you can never assume anything, no matter how small or seemingly obvious the detail. Evidence needs to be built on the record layer-by-layer so that there are no gaps or inconsistencies. For instance, in this case, we needed to know if one of the defendants had read the warning labels that come wrapped around a product in a certain year. But the first question cannot just be, did you read the warning labels? Maybe it was once their job to unpack the product, but maybe they did not work at the company until the year after the product in question arrived at the warehouse.

First, the witness would be asked, about their work history. This showed us where they were in a given year, and if they were in the department or job that would have put them in contact with the parts at the time we cared about. Then they would be asked about their responsibilities in the role, to see if they actually had contact with the part. Next, they would be asked about how the product was packaged. We knew that they came in boxes of six, but the witness would need to describe that, so we would know if his recollections were accurate. Then they would be asked about the packaging, what was on it, if it was removed from the sleeve that contained the warnings when sold, and on and on. After getting all their recollections on record, the lawyer would bring a photo of the warning up as final confirmation from the witness that they had seen it. This whole line of questioning could take 2-3 hours, just to find out if they had seen the warnings. But this way, we knew they were in the right place at the right time, and it was confirmed by both oral testimony and evidence.

As a note-taker, you’re also playing an essential role. Not only are you recording the evidence, but you are also in charge of tracking undertakings. Undertakings are requests for information and documents from one lawyer to another. They can range from contact information for a witness to company reports and specifications. It is very likely that you will be asked to draft a chart of all the undertakings, so it is essential you listen for the words, “council, can I get an undertaking for…” because that is your cue. I learned quickly that just because you request it, does not mean you’ll get it. Usually, when an undertaking is requested, council will respond with “best efforts” – meaning they will do their best to produce it. But sometimes, they will refuse and explain on record why they are doing so. It is also your job to record these responses.

If you have the opportunity to attend multiple days of discoveries, I highly recommend you take it. A one-day attendance gives you an idea of what Discovery is. But attending multiple days shows you how evidence is gathered, how strategies change as information evolves, and all that time working with one lawyer is a great relationship-building opportunity.

by Alexandria B.

A front row seat to a human rights hearing

From day one at McCague Borlack, I assisted an associate with different aspects of a human rights matter. After researching case law, drafting a witness statement, and compiling a book of documents, I was excited to finally attend the hearing at the Human Rights Tribunal of Ontario.

The Vice-Chair initially proposed the option of participating in a mediated adjudication. This is a quicker way to negotiate a resolution that gives parties more autonomy over the terms. Although we were not successful, the terms discussed would not be brought up at the hearing.

At the hearing, the Vice-Chair determines whether the applicants had their rights infringed and if so, what the appropriate remedy is. To start off, an agreed statement of facts saves time and avoids producing the same documents multiple times. By weeding out the non-controversial facts, the focus of the hearing is on the divisive issues. However, agreeing on the facts is a negotiation exercise between lawyers.

The Vice-Chair’s decision is based only on relevant information at the hearing. This is presented orally through witnesses’ testimony and documentary evidence.

Relevance is based on two factors:

• Whether the respondent treats the applicant differently or in a way that had a negative impact based on a ground of discrimination in the Human Rights Code, i.e. disability; and
• Whether the applicant suffered a disadvantage or a loss, i.e. loss to the applicant’s sense of self-worth and dignity
  
  

Over the two-day hearing, I observed three witnesses engage in examination-in-chief and cross-examination. These are my three takeaways:

1. Know the answer before asking the witness a question.
2. Prepare your witness so they remember the evidence they need to give in their testimony. Since applicants may testify as witnesses to their own hearing, they are emotionally invested in the outcome. However, this is not the time for witnesses to vent their grievances.
3. Avoid open-ended questions and restrict the testimony to admissible evidence. It is crucial to have the witness give evidence that helps your argument.

Since this hearing was extended by another two days, I was not able to observe submissions and closing arguments. The outcomes of the hearing can include a dismissal or a remedy in the form of a monetary award or order. Ultimately, the Human Rights Code is meant to remedy an infringement of human rights, rather than be punitive. Tribunals commonly “reserve” their decisions, so this decision will likely be released on CanLII in Fall 2018.

Egi T.