The Five Ws of Questioning
What is questioning?
Questioning is an important part of the pre-trial process of gathering and disclosure of relevant and material information, which may eventually become evidence. It is a process where one party is permitted to ask another party, adverse in interest, relevant and material questions about records and information pertaining to the lawsuit (See Rule 5.17 of the Alberta Rules of Court).
Questioning is typically conducted orally, and under oath or solemn affirmation (Rule 5.22) A witness must be reasonably prepared and bring with them any records likely to be required (Rule 5.23). The questioning is recorded by a court reporter who creates a transcript of the questions and answers (Rule 5.26). A party is obligated to answer all questions that are relevant and material (Rule 5.25).
You may be the familiar with the previous term “discovery.” The term was changed to “questioning” when our province updated our civil procedure rules.
Who gets questioned and what happens?
A party to a lawsuit and their lawyer will attend questioning. If you are being questioned, you are not allowed to discuss any of your answers with your lawyer while you are under oath, even while you are on a break. Your lawyer will likely explain to you the basics and rules of questioning in advance of the questioning. Questioning is closed to the public and no judge will be present, just the parties, their counsel, and a court reporter.
Although you can’t consult your lawyer while you are being questioned, your lawyer can object to questions if the question seeks privileged information, is not relevant and material or is unreasonable or unnecessary, and may object under any other ground for an objection recognized at law (Rule 5.25). A questioning party is not allowed to ask abusive or harassing questions or questions that require someone to speculate an answer. A questioning party also cannot seek expert opinions from a lay witness.
If a party objects to answering a question, and the objection cannot be resolved between the parties, then a court may need to decide whether the question is valid. A court has the power to compel the answer. If a party is not sure whether they should answer a question, they may “take it under advisement.” To put it simply, that phrase means “we are not answering the question right now, as we may have an objection.”
What if you are asked a question and don’t know the answer off the top of your head or you do not have the document with you? You may be asked to give something called an “undertaking” (Rule 5.30). An undertaking means that you promise to obtain an answer, or make reasonable attempts to obtain an answer, that you don’t currently have available. You must produce your undertakings within a reasonable time.
Your lawyer will consider requests for undertakings and advise whether they will be agreed to or not. Your lawyer will also be responsible for making objections on your behalf. Once you have completed the undertaking and have provided the information you promised to provide, the party can further question you on that answer or the record provided.
In Alberta, the Rules state that all parties to a lawsuit have a duty to keep information they learn through questioning or document production confidential (Rule 5.33).
When does questioning take place?
Questioning takes place after the Plaintiff and Defendant have each served a document called an Affidavit of Records on the party adverse in interest (Rule 5.20). Briefly, an Affidavit of Records is the sworn disclosure of all the records relevant and material to the issues in the action and are (or have been) under the party’s control.
Where does questioning take place?
Usually, questioning will take place in a meeting room in a law office; however, more recently our legal system has adapted to allow remote questionings via video conference as well.
Why do we have questioning?
Attendance at questioning is required by the Rules of Court, and a court has the power to order a party to attend and to bring their relevant and material records (Rule 6.38). It is a critical step in the information gathering process of civil litigation.
The answers a party provides at questioning can be used by the opposing party at an application, proceeding, or at trial (Rule 5.32). The information a party provides at questioning can only be used by the opposing party (Rule 5.31). The opposing party “controls” that transcript and the use of that transcript, with a few exceptions.
In the grand scheme of things, the policy behind disclosing information to the other side in civil litigation is to obtain information that will become evidence in the action, narrow and define issues, encourage early disclosure of facts and records, facilitate an evaluation of each party’s position, explore possible resolution, and to discourage improper delays and increased costs (Rule 5.1).
If you are approaching questioning as a litigant, you may feel nervous about the process, but you should remember that you are not held hostage by the process. You will be provided the opportunity to take breaks and you can and should ask for clarification if you do not understand a question. Questioning is unlikely to resemble the dramatic scenes you may have seen on television. The rules of civil procedure protect you against abusive questions. Above all, the most important rule of questioning is to always tell the truth. The purpose of this blog post is to provide a general overview of the rules around questioning. Our lawyers will ensure you are adequately prepared with information on what to expect, and about the rules of questioning, before you head into this process.