What is Questioning and Why is it Important?
- The Court process in Alberta includes various steps that are designed to move the process alone. After filing a Statement of Claim and exchanging documents, parties involved in a Court dispute will most likely proceed to Questioning.
- Questioning is an opportunity for the other side to ask you questions about your records and gather evidence about the relevant matters. It gives opposing counsel a chance to explore the facts and evidence you have to support your position.
- The questioning process gives both sides a good insight into the strengths and weaknesses of their respective positions. Understanding more about the other party’s case will help you better prepare for Trial.
- Questioning helps narrow and define the issues, discourages improper delays, prevents surprises at trial and encourages settlement.
More About the Process
- The party being questioned must take an oath or solemn affirmation to answer all questions truthfully.
- The responses a party provides while being questioned can be relied on by the opposing party during an application or at trial.
- Questioning is not open to the general public – not even judges can attend.
- Although questioning can get intense from time to time, the goal for both parties is to keep the exchange civil and to avoid confrontation.
Is Attendance Mandatory?
- Yes, the Alberta Rules of Court require a witness’ attendance.
- If a party is being evasive, the Court has the power to make an Order compelling them to attend a questioning with their relevant records.
Who Attends Questioning?
- Counsel for each party
- The witness being questioned
- A court reporter who transcribes all of the questions and answers
When Does Questioning Take Place?
- Once parties to a litigation have exchanged their Affidavit of Records, questioning is the next stage of the process.
Where Does Questioning Take Place?
- Questioning usually takes place in the meeting room of a law firm.
- Recently, questionings have started taking place remotely, via video conference
What Am I Going to Be Asked?
- As the witness, you can expect an influx of questions relating to your producible records and matters raised in the Statement of Claim and Statement of Defence.
Will My Lawyer Prepare Me?
- Prior to questioning, your lawyer will brief you and let you know what to expect on questioning day.
- The preparation stage is your opportunity to ask any questions you may have about the process and how to prepare.
- During this stage, your lawyer may also discuss settlement and walk you through your options.
How Can I Prepare Myself?
- Prior to questioning, you should review all relevant pleadings and reports from the matter, to remind yourself of the facts.
What Do I Wear?
- Although there is no formal dress code, consider the impression you want to convey. It’s probably best to not turn up in a tank top and shorts.
Can My Lawyer Help Me During Questioning?
- If you are the party being questioned, you are not allowed to discuss any of your answers with your lawyer while you are under oath, even during breaks.
- Your lawyer can object to you answering a question if the question seeks privileged information, is not relevant and material, or is unreasonable or unnecessary.
- If your lawyer objects to a question, you should stop talking, even if you were in the middle of a sentence.
- Your lawyer will consider the undertaking requests and advise whether they will be agreed to.
- If your lawyer is unsure of whether you should answer a question, they may “take it under advisement”, meaning that they may potentially object to it.
Do I Have to Answer Everything?
- If you are the party being questioned, you are obligated to answer all questions that are relevant and material.
What If I Don’t Remember an Answer?
- If can’t recall the answer at the top of your head, you may be asked to provide “an undertaking”. This a promise to obtain an answer or make your best attempts to obtain an answer.
What If I Don’t Know an Answer?
- Don’t guess or make something up – it’s better to admit that you do not know the answer.
- If the Court feels your answers are untruthful or unreliable, it could affect the reliability of your evidence. If you provide inconsistent evidence at trial, opposing counsel will rely on the discrepancies to diminish your credibility.
- If you are confused about a question or don’t fully understand what is being asked, you should ask opposing counsel to clarify or rephrase the question.
How Should I Answer the Questions?
- Allow opposing counsel to finish their question before you begin answering, and only answer the specific question you have been asked.
- Be concise and avoid divulging more information than necessary. If the lawyer questioning you needs more information, they will ask you to elaborate.
- Whenever possible, it’s best to answer with a “yes” or “no”.
- Answer honestly – remember you are under oath. Don’t lie, even if you think your answer may not support your case.
What if I Gave A Wrong Answer?
- If after the questioning you realize that one of your answers is incorrect or inaccurate, you should immediately notify your lawyer.
- The Rules of Court require your lawyer to communicate to the other side that one of your answers has changed.
What Happens After Questioning?
Your lawyer will:
- Debrief you
- Discuss potential issues and weaknesses
- Discuss your strategy going forward
Tips for Success
- Take your time – there’s no need to answer instantaneously. It is important that you reflect on the question and think about how you would like to respond.
- Stay composed. It’s natural to feel slightly anxious or nervous, but we will ensure that you are well prepared and will be there to step in whenever necessary.
- Everything said during the questioning will appear on a transcript, so you want to ensure that you are not coming across as hostile or uncooperative.
- If at any point you are feeling overwhelmed, tell your lawyer that you would like a short break.
How can we Help?
- The lawyers at Bosecke Law LLP are readily available to guide you through the litigation process and to represent you in Court proceedings.
- Should you have any questions, please contact our office.
How can our Edmonton Litigation lawyers help you?
For over 3 decades, the experienced team of lawyers and legal professionals at Bosecke Law has provided both confidence and peace-of-mind to clients, assisting with litigation needs. Our lawyers can offer expert advice and representation in court when it comes to any legal challenges or litigation needs. Feel free to reach out to us. We’re in your corner.