DISCOVERY PRACTICE
PAPER 1.1
Preparing Your Witness for Discovery
These materials were prepared by Martha A. Sandor of Findlay Gunnell Sandor, Maple Ridge, BC, for the
Continuing Legal Education Society of British Columbia, May 2013.
© Martha A. Sandor
1.1.1
PREPARING YOUR WITNESS FOR DISCOVERY
I.
The Big Picture ................................................................................................................................................... 1
II.
Plan Ahead .......................................................................................................................................................... 1
III.
Know Your Case ................................................................................................................................................. 2
IV.
Review the Documents ..................................................................................................................................... 2
V.
Review the Law................................................................................................................................................... 2
VI.
Key Issues ............................................................................................................................................................ 3
VII.
Know Your Witness ........................................................................................................................................... 3
VIII.
The Difficult Client............................................................................................................................................ 4
IX.
Meetings with Client ......................................................................................................................................... 5
X.
Additional Resources ........................................................................................................................................ 7
XI.
Appendix A—Sample Letter to Client Re: Examination for Discovery.................................................... 8
XII.
Appendix B—Four (or Five) Rules for Examination for Discovery: A Talk with the Client ...............10
I.
The Big Picture
Cases are won and lost at discovery. If you do not properly prepare your witness, you will be punished and
your case will suffer. Good counsel know this and ensure their witness is ready. Counsel defending a discovery
is not babysitting the witness. Counsel must be as prepared, alert and focused as the examining party given
that inappropriate questions may suddenly pop up and there may be little time to object before your witness
responds.
You are not responsible for the facts of your case, but as counsel you have a duty to ensure that your witness is
as ready as he or she can be. You need to educate your witness. A witness needs to understand, at a
minimum: the process (what is going to happen and why); his obligations and role (what he needs to do); and
the do’s and don’ts of testifying under oath in an adversarial setting (the basic rules).
II.
Plan Ahead
Once you have a date, schedule time for yourself to prepare in advance of meeting with your witness. Also,
allow enough time to book two or more witness preparation meetings. Complex or commercial cases may
require even more meetings.
Be realistic and be pro-active. Don’t schedule the witness preparation meetings too far in advance or leave them
to the last minute. Booking the first witness preparation meeting approximately 2 – 4 weeks prior to the
discovery date works well as there is time to book further preparation meetings as required.
1.1.2
It is never too early to start preparing your witness and it is good practice to provide your witness with
information about the discovery process as soon as the date is scheduled. You should send your witness a
formal letter attaching the Appointment to Examine for Discovery. Include information about the discovery
process or append an information memorandum for their review. A sample precedent letter and an outline of
the basic rules of discovery from Lyle Harris, Q.C.’s, Discovery Practice in British Columbia, are attached as
Appendix “A” and “B”.
III.
Know Your Case
The pleadings set out the essential facts and issues of the case. REVIEW THE PLEADINGS. A thorough
knowledge of the pleadings is critical as they define the boundaries of the discovery. Counsel should be aware
of admissions made, specific legislation or defences pled as these will further inform the preparation of the
witness. For example, in a wrongful dismissal case, a defendant may admit the specific terms of the
employment contract, but allege just cause for termination. In a motor vehicle accident case, the defendant
may admit liability for the accident, but allege that the accident was not the proximate cause of the plaintiff’s
injuries. In a trespass case a defendant may admit to the specific conduct, but dispute the location of the
property line. Understanding admissions allows you to hone in on the real issues in your case and in the result,
you can focus valuable preparation time with your witness in a more organized and effective manner.
IV. Review the Documents
Review the plaintiff’s and defendant’s documents. Flag key documents and specifically note what flows from
each. Lengthy memoranda are not essential, but summary notes highlighting key points will serve you well as
they will inform your preparation plan for your witness. For cases with voluminous document discovery,
consider dictating a brief note for every document you have flagged. The memo can be placed at the front of
the document binders and will be useful to both yourself and other counsel who may be assisting on the file.
V.
Review the Law
In addition to the pleadings, the law will inform how you prepare your witness and it will most certainly drive
the substance of the examiner’s questions. Prepare a brief summary of the law relevant to your case. A sample
outline for a personal injury claim is set out below:
1.
The defendant owed the plaintiff a duty of care. The operator of a motor vehicle must keep a
proper lookout and not drive at excessive speed; ss.144(1)(a) and 144(1)(c), Motor Vehicle
Act, RSBC 1996, c.318;
2.
The defendant breached that duty of care;
3.
The defendant’s breach caused injury to the plaintiff. The “but for” test is set out and
confirmed in Clements v. Clements, [2012] 2 SCR 181;
4.
Damages will be assessed based on:
5.
a)
non-pecs as per Stapley v. Hejslet, 2006 BCCA 34 (CanLII)
b)
diminished earning capacity as per Perren v. Lalari, 2010 BCCA 140 (CanLII)
Mitigation: the defendant bears a heavy burden in establishing a reduction in damages on the
basis of failure to mitigate as per Lee v. Dueck, 2012, BCSC 530 (CanLII); citing Fox v. Danis,
2005 BCSC 102 (CanLII);affirmed at 2006 BCCA 324 (CanLII).
1.1.3
VI. Key Issues
Key issues are usually apparent at the close of pleadings, but some may emerge only after a careful review of
the relevant law. Counsel will benefit from noting the key issues in a brief memorandum as this will help to
refine and narrow your witness preparation plan. If mitigation is a key issue in your personal injury claim, the
memoranda should include the following:
a)
what treatment was recommended;
b)
when was it recommended;
c)
who recommended it;
d)
how was the recommendation conveyed;
e)
why wasn’t the recommendation pursued.
VII. Know Your Witness
Clients come in all different shapes and sizes and no two will be so similar that you can overlook this aspect of
preparation. You need to know your witness so that you can target your preparation to address their
idiosyncrasies and/or limitations. The best way to learn about your witness is to spend time with him. If you
are the primary counsel on the case, you may already have considerable insight into your client’s personality,
strengths and weaknesses. If you are assigned to prepare the witness and attend the discovery, you may know
very little about the individual. If your client is a corporate entity, you may be lead counsel, but still have little
knowledge about the corporate representative that will be examined. Make it your job to learn about your
witness. If you have scheduling problems or limited time with the witness, obtain information from other
sources. Speak to lead counsel or other counsel who have been involved in the case.
In my experience, witnesses tend to fall, more or less, into five general categories or types.
Type One - The Nervous Ned: Most witnesses will be nervous about attending a discovery and they will likely
tell you so. Generally, reassurance and thoughtful preparation will be enough to put the client at ease – not so
for the “Nervous Ned”. These folks are fretters and likely have perfectionist tendencies. These personality types
are super keen to do a good job, which is a real plus, except when their effort paralyzes their judgment and
confidence. Plan on spending extra time reassuring this type of witness. I tell the witness that it is natural to
feel nervous and even scared. Lots of people do. The nerves and worries aren’t going to magically disappear,
but I will provide them with helpful information, direction and guidelines, so that by the time they give their
evidence, they will have a good understanding of the process, what to expect and how to handle the questions.
I tell them that by the time our preparation is complete, they will be as ready as they can be and they will feel
more comfortable and more confident. They don’t have to be perfect, they just have to be prepared and I am
going to make sure that they are.
Type Two – The Know It All: This type will resist listening to or taking your advice, but take heart, they can be
managed. I find that as long as I keep my focus and stick to my preparation plan, I can get the job done even in
the face of resistance. One point to emphasize with this type of witness is the need to focus on answering the
question at hand, rather than “outfoxing” the opposing counsel.
Type Three – Don’t Worry, Be Happy: You will need to take a firm hand with this witness type and put extra
procedural follow-ups in place to ensure your witness’s compliance with preparation and attendance
requirements. Plan to send extra letters advising of the discovery date. Have your staff make reminder calls
ahead of preparation appointments and before the discovery date. Assume they will not have done their
homework and read your discovery preparation letter or memo and plan to
1.1.4
spend extra time on explaining the logistics, purpose and do’s and don’ts of discovery. Have them review the
documents at your office – that way you can be sure that some effort is made to review the documents and
that the documents will not be lost or damaged.
Type Four – Seriously Injured: You should be sensitive to possible mobility, endurance and personal care
issues. If your client has medical support requirements, address these ahead of time. The bigger challenge is
the witness with serious psychological issues, for example major depression or post-traumatic stress disorder.
The condition may or may not be related to the litigation, but regardless, it will certainly be at play in your case
and in your discovery preparation. In these cases you will want to make sure that proper psychological and
social supports are put in place for before, during and after the discovery.
Some witnesses may suffer from a mental illness and you will need to consider how to shape your preparation
around that. You should be familiar with the nature of the mental illness and what behaviors to expect. Don’t
be judgmental – be prepared.
If your witness is struggling with substance abuse issues, the stress of discovery may have the unwanted effect
of pushing him to increased abuse. As in the case of the excessive worrier, I find it best to be practical and
direct with the witness. You should acknowledge that there is an issue and that getting help is in his best
interest. Have a frank discussion about the importance of attending for preparation and discovery with
judgment intact and a clear head. You are his lawyer and if this is an issue for him, your job is to raise it and try
to address it as best you can.
Serious physical and psychological conditions can overwhelm a witness during the discovery. Raise this ahead
of time with the witness and let him know that if necessary you can adjourn the discovery and arrange for a
continuation at a later time.
Finally, you should check your expectations against the individual’s disability. For example, it is not realistic for
a seriously brain injured witness to review reams of medical records, reports and other documents. Their
executive function is likely diminished and retention and fatigue will likely impede detailed review of facts and
key issues. In such a case, extensive preparation time may not yield any benefit and may in fact do more harm
than good.
Type Five – The Perfect Witness: There is no such thing as a perfect witness. If you think you’ve got one, steel
yourself for the inevitable bad news, new document, or legal banana peel waiting for you around the corner.
Prepare this witness as you would any other mere mortal, but do not be lulled into complacency.
VIII. The Difficult Client
The difficult client has many faces. He may be a bully, unreasonable, impatient, temperamental, inconsistent
and angry. It is important to try to deconstruct the cause of this behavior. Typically, a client will understand
the limitations of the legal system and the reality of having to work within it. Even when limitations are
understood, some clients need to vent their anger and frustration and they may not comprehend how they are
coming across or that you are not a useful target for their frustrations. The bully will try to dictate the
direction of the litigation beyond the reasonable boundaries of providing instructions. The poorly informed
client may not fully understand your role and the nature of the services you will provide. The first and
fundamental step in dealing with a difficult client is to make sure you have clearly outlined your retainer,
provided the necessary information explaining the process and have been responsive to his concerns. If you
have done all of these things and you are faced with the specific behaviors that are problematic, i.e. yelling,
angry outbursts, unreasonable instructions, etc., these are best dealt with early in the solicitor/client
relationship. This will be particularly challenging for junior counsel practicing alone or at the bottom of a large
firm hierarchy. Nonetheless, it is always better to address inappropriate conduct before a pattern is
established.
1.1.5
Enlist the support of senior counsel on the file, and if you are a sole practitioner, reach out to a colleague or a
bencher at the Law Society. A phone call to the client may suffice, but where the behavior is extreme, a faceto-face meeting may be necessary and be more effective. Either way, have a pre-planned agenda. My simple
rule for most difficult client meetings is as follows: Validate, reiterate, dictate. For example, if a client is rude,
dismissive or unduly argumentative about the need to attend the discovery, the agenda points would be:
a)
Validate. Listen to the client;
b)
Reiterate the need to attend the Discovery as a part of the litigation process and address
specific concerns, if any, raised by the client;
c)
Dictate a letter or a memo confirming the discussion and any instructions on key points.
Validation is not capitulation or accepting the opposing view point. It is simply acknowledging that you have
heard the position. I cannot overstate the importance of knowing that you have really been heard. It paves
the way to compromise and acceptance. Additionally, you may discover the real reason the client does not
wish to attend and you may be able to address it without too much difficulty.
Reiterating your position in clear terms provides the client with the advice he needs to make the best decisions
on the case. You need to do your job and give your client your best advice. For example, you will reiterate that
failure to attend a discovery may result in the claim being struck.
Dictating a letter will reinforce what you have advised your client and will serve as a record of your advice in
the event that the client alleges the advice was never given. A memo to file will serve as your record that the
issue was raised, steps were taken and a resolution was achieved.
Some client conduct may be so offensive or inappropriate that you may not be prepared to continue the
retainer. Your duty is to act in your client’s best interest and to conduct yourself and discharge your duties in
an ethical and professional manner at all times. You are not bound in perpetuity to continue a retainer when
you have legitimate reasons to withdraw. Dishonesty, refusal to accept advice on a significant point and/or
persistently uncooperative and unreasonable conduct in a material respect, are all justifiable reasons for
withdrawal. If you are considering terminating the retainer, you should review the Code of Professional
Conduct for British Columbia and in particular s.2.2-7 (dishonesty and fraud by client); s.3.7 (withdrawal from
representation); s.3.7-2 (optional withdrawal); s.2.1-3(e) (duty to act within bounds of the law).
IX. Meetings with Client
There are four essential components to this part of discovery preparation. The first component is to provide
your client information about the purpose of the discovery. You should at the very least explain the following
to the client:
a)
The discovery is one of the usual steps in the litigation process. You are not being singled out
and you get to have a discovery of the opposing party;
b)
The purpose of discovery is:
i)
to find out what happened;
ii)
to assess you as a witness;
iii)
to obtain admissions and secure your evidence under oath which could be used
against you at the trial.
1.1.6
The second component of the client meeting addresses the logistics of the discovery. You should provide the
following information to the witness:
a)
when it will take place;
b)
where it will take place;
c)
how long will it take;
d)
who can you bring;
e)
who will be there;
f)
each party’s role.
The third component of the discovery preparation meeting is to explain the basic rules of discovery to the
client (ie., the do’s and don’ts). In my practice, I include the following as basic rules:
1.
you have a duty to inform yourself about the relevant facts within your knowledge;
2.
tell the truth and be yourself;
3.
once we are “on the record” everything we say is transcribed;
4.
listen to the question, if you do not understand the question – ask counsel to clarify or
explain;
5.
don’t guess – if you don’t know or don’t remember, say so;
6.
answer the question and STOP TALKING;
7.
if you are asked to read something, take the time you need to read it;
8.
just because something is written in a medical note or other record, doesn’t make it true;
9.
distinguish between your personal knowledge and what you’ve been told;
10.
you may agree with statements put to you, but you can qualify or add information if
necessary;
11.
if necessary, ask to see a document;
12.
no diagrams;
13.
I cannot help you answer the question;
14.
I may object to a question and advise you not to answer;
15.
be courteous, but stand your ground;
16.
if you make a mistake, you may clarify and correct;
17.
review the documents, pleadings and any key reports.
The fourth component addresses the specific issues, documents and facts of the case. My practice is to
schedule this part of the preparation as a separate meeting, after I have completed the first three components
and after the witness has reviewed the documents. At this meeting, you should conduct a thorough interview
with your witness and cover the key issues and documents. Also, your witness may benefit from a dry run or a
series of sample questions, after which you may reinforce the basic rules as set out above.
Finally, you should make a point of asking your witness whether he has any questions or concerns. Your
witness has likely experienced a considerable arc in his understanding of the discovery process and questions
raised now will give you further insight into your own preparation process and any areas in your case that you
may have overlooked or dismissed.
1.1.7
X.
Additional Resources
Lyle Harris, Q.C.’s, Discovery Practice in British Columbia is an excellent and thorough practice resource.
Additionally, I would highly recommend Robert B. White, Q.C.’s insightful and elegantly written text, The Art
of Discovery (1990 Canada Law Book Inc.).
1.1.8
XI. Appendix A—Sample Letter to Client Re: Examination for Discovery1
Sample Letter
[month, day, year]
Dear [name of client]:
Re: Your examination for discovery [time, date, place]
I write to advise that the solicitors for the [opposing party] have arranged an appointment to examine you for
discovery as follows:
Time:
[time]
Date:
[month, day, year]
Place:
[location]
An examination for discovery is an informal pre-trial procedure conducted under oath in the presence of a
court reporter but not a judge. Each party’s lawyer will ask the other party questions about the subject matter
of the lawsuit. The opposing lawyer will be asking you questions about [give general outline of issues in case as they
pertain to client]. I enclose our information brochure regarding the examination for discovery.
I need to meet with you in person to prepare you fully for the questions you will likely be asked and the
answers you should be expected to give (consistent with the truth, of course). Accordingly, I would like to meet
with you at our office at [time] on [date]. If the date or time is not convenient for you, I would ask that you
contact my secretary/ assistant, [name], to rearrange the time and date to your convenience.
[Set out documents that relate to issues in action, and request that client bring them with him/her.]
If you should have any questions regarding the above, please do not hesitate to contact our office.
Yours very truly,
1
Excerpted from Discovery Practice in British Columbia by Lyle G. Harris, QC (CLEBC: Vancouver, 2013), FP 14.
1.1.9
Information Brochure—To Be Enclosed With Letter to Client
A.
WHAT IS AN EXAMINATION FOR DISCOVERY?
In its simplest form, an examination for discovery is the oral testimony of a party taken under oath before the
trial. The questions that are asked must be relevant to the case.
B.
PURPOSE OF THE EXAMINATION FOR DISCOVERY
The purpose of an examination for discovery is to allow the opposing lawyer the opportunity to learn all about
your case.
This is usually the first opportunity the opposing counsel has to meet you and observe you. It is important that
you make a good impression, and you should dress presentably.
Many people ask these questions if they have never been to an examination for discovery:
(1) “How do I prepare?” I will meet with you to review all your evidence with you. Until then, review your
notes, your diary, and the documents and correspondence I have sent you.
(2) “What should I bring to the examination?” Bring [all documents that relate to issues in action].
(3) “What if I can’t remember?” Don’t worry, no one can be expected to remember everything about his or
her case. I will prepare you to answer questions about things you can’t remember.
1.1.10
XII. Appendix B—Four (or Five) Rules for Examination for Discovery:
A Talk with the Client2
The following rules provide a useful starting point for talking with a client about examination for discovery.
RULE ONE: LISTEN TO THE QUESTION
This rule sounds simple, and it is: Listen to the question. Listen to what it means in ordinary English. Many
people think that the job of a lawyer is to make things more complicated; to make little words into big words;
to twist black until it sounds like white. Many people think we get paid by the word, and the more importantsounding words we can use, the better. I don’t think there is any truth at all to that stereotype. There is
certainly no truth to it when it comes to examination for discovery.
Most people get defensive when they hear a word they don’t understand. They think maybe they should
understand it, and sometimes they even pretend that they do. On an examination for discovery, this is wrong. If
you hear a word you don’t understand, you must always ask the examiner to rephrase the question to use a
word that you do understand. You cannot answer a question that uses words that you don’t understand.
So listen to the question and ask yourself: Do I understand the words that are being used? If not, you must ask
the examiner to rephrase the question. Tell the examiner: “I don’t understand the word [specify]. Could you
rephrase the question please?”
Many times a witness makes the mistake of interrupting the examiner before the question is complete. This is
very difficult for the examining lawyer, because it is hard for both the examiner and the court reporter when
two people are speaking at once. But from my point of view, if you interrupted the examiner, it means that you
were not listening properly to the question. So don’t interrupt the examiner; listen to the whole question.
Sometimes the question makes a wrong assumption. Take, for example, a divorce case, in which the question
“When did you stop beating your spouse?” only makes sense if at some time you started beating her or him. If
you never started beating your spouse, you must say, “[Mr./Ms.] Examiner, your question assumes that I started
beating my spouse. I never did such a thing.”
In that last example, I will probably step in and object before the examiner has a chance to ask you such a
question. That is an example of a question based on a wrong assumption. But you know your evidence better
than anyone else knows it, and there may be some assumptions that are incorrect. Only you can set those
right. And you can do that by listening to the question and answering appropriately.
RULE TWO: JUST ANSWER THE QUESTION
This rule also sounds simple, and it is, but it is one that most witnesses forget. Every answer has a logical
starting place and a logical ending place. For example, you are asked: “Tell me how the accident happened.”
You would not start the answer by saying, “I was born at the very young age. What I was two years old, I ran
away with the circus, but they made me give it back. I first started driving a motor vehicle when I was 14,
around the old high-school parking lot… .”
Of course, I am being absurd with this last example. But it is meant to illustrate that every answer has a logical
starting place. You, and only you, can determine that starting place.
How long should your answer be? Make it as short as you can. If you can answer “yes” or “no”, then do so. Don’t
make it any more complicated than that. If you have to give an explanation, keep it short. If you have an
explanation that is longer than, say, 20 words, then you may be rambling on too long.
Lawyers enjoy talking to witnesses who talk too much. Because the more they talk, the more words they use;
the more words they use, the more likely they are to make a mistake. And people who talk too much usually
2
Excerpted from Discovery Practice in British Columbia by Lyle G. Harris, QC (CLEBC: Vancouver, 2013), FP 15.
1.1.11
make even more mistakes when they try to explain their previous mistakes. We call that “digging their own
grave”. Lawyers really like examining witnesses who do that!
I am sure you don’t want to be a witness like that. You may be a person who is very articulate in your own
vocation or walk of life. Even so, don’t try to out-talk the other lawyer. And don’t try to out-guess the other
lawyer. Don’t think, “Why did he ask that?” “Where’s she going with that question?” That is my job, not yours.
Just answer the question.
When I conduct my examination of the opposing party, that examination will be for our benefit. Similarly,
when the other lawyer conducts your examination, it is not for your benefit, but for the benefit of the other side.
That is why you should be guarded about answering more than what is called for by the question.
If you think that the other lawyer has missed the point completely, or has ignored some subtle implication in
your answer, don’t be concerned about that. That is not your problem; that is the other lawyer’s problem. If the
other lawyer doesn’t ask, don’t volunteer information. Your job is to focus on the question, and just answer the
question.
If the question calls for a “yes” answer, then just answer “yes”. Don’t answer “uh-huh”. The court reporter doesn’t
pick up grunts, and an experienced lawyer will always ask, “Do you mean yes?” Similarly, if your answer is “no”,
then don’t answer “uh-uh”. An experienced lawyer will always ask, “Do you mean no?” Let your “yes” be yes, and
your “no” be no.
The sole exception to this rule lies when you are telling the other lawyer about your injuries in a personal injury
action. In that case, it is important for the lawyer to know what your injuries are. For all other types of actions,
it is important to stick by this rule.
I know this next part may appear unusual, but there are degrees of truth in any answer. For example, if you are
asked when an event occurred, you may answer “11:55 a.m.”, or, “either just before or after noon”, or,
“approximately mid-day”, or even “sometime during the day”. All of these answers may be true, within certain
limits. Make sure you state the degree of precision you can attach to your answer.
Most lay witnesses are very poor at estimating time, speed, and distance. For example, when asked about the
duration of an event, you may say, “A very short time. No longer than a couple of minutes.” You will find that,
when timed by a stopwatch, two minutes is actually a very long time. A better answer may be “a very few
seconds at most. A split second.” You may have to qualify your comments about time, speed, and distance with
the words, “I’m really not a very good judge of time but I would say it happened in [specify] seconds.”
An imprecise answer can still be a true answer, as long as you make it clear how precise or imprecise you are.
But at some point, an imprecise answer becomes a guess, and that leads to my third rule.
RULE THREE: DON’T GUESS
Making different guesses can be like the difference between apples and oranges. If you guess “apples” one
occasion (your examination for discovery) and “oranges” on another occasion (your trial), you might think you
have made two very fine guesses, but in law you have given two conflicting answers. You must never guess at
the truth.
No one person can remember everything about his or her case. There will always be some things that will be
unclear, and it is no shame to say “I don’t know” or “I don’t remember”.
RULE FOUR: TELL THE TRUTH
This rule permeates all the other rules, and it is by far the most important rule. For most lawyers, no case is
more important than the truth. The truth is so important that if you ever stop telling it to me, I don’t want to
be your lawyer anymore.
1.1.12
Many honest people, while wanting to tell the truth, make the mistake of worrying about how a particular
piece of evidence might help or hurt their case. So they might twist it just a little bit so that it fits in, but it
becomes a false piece of the puzzle. Don’t worry about how a piece of evidence will affect your case. Let me do
that. Just tell the truth!
Many honest witnesses get overly anxious about getting everything right and keeping their “story” consistent
from one telling to the next. I urge you not to worry about this. If you tell the truth at all times, any
inconsistencies between (for example) your signed statement and your examination for discovery will be
minor. Most judges and juries will forgive a few minor inconsistencies provided they form the impression that
the witness is doing his or her best to tell the truth at all times.
And if you are being “grilled” or given the “third degree” by the other lawyer, you can take comfort and find
refuge in the fact that you are telling the truth. (“Wow, am I being raked over the coals, but at least I’m telling
the truth!”)
RULE FIVE: STATE WHEN AN ANSWER IS BASED ON INFORMATION FROM OTHERS
This rule is for officers answering on behalf of corporations. It is a very difficult rule to apply, because when you
are an officer of a corporation, you must always be aware of the difference between what you know personally
and what you have been informed of by others.
As an officer, you must divulge information of others in the company, whether you believe it to be true or not.
It is important for you to distinguish between your personal knowledge and the information of others to
prevent the company from being bound by information that its officers do not accept.
For example, the examiner may ask, “Were the stairs swept when the store was closed on Friday night?” A
witness not properly briefed about the implications of the answer may say, “No, they were not.” A properly
briefed witness will say, “I am informed by George Jones, our maintenance contractor, that they were not.” The
examiner may then ask, “Does the company accept that information?” And then you may reply, “The company
neither accepts nor rejects it. It is all the information we have and we are still investigating.” And you, as the
properly briefed corporate officer, will have avoided making an admission based on hearsay before the
investigation is completed.
Most people have difficulty distinguishing between what they know and what they have been told by others.
However, you must be careful to distinguish between these two types of information during the preparation
for your examination.