Those drafting the 2010 Alberta Rules of Court said the new Rules were intended to make terminology easier for people not used to litigation. Unfortunately, sometimes the new Rules make it harder (especially for lawyers from other provinces). The prime example is using the word "questioning" for several very different proceedings.
Two such proceedings are common. One used to be called examination for discovery; the other was called cross-examination on affidavit. They have very different aims and consequences. So the practicalities of how a lawyer should choose one of them or carry it out, differ markedly.
Both take place in someone's boardroom with a court reporter present but no judge or master. But that superficial resemblance is highly misleading.
An examination for discovery (under R. 5.17) has many possible aims. The most important one is learning what you do not know, and so avoiding later surprise. Usually only the party examining the witness can make use of the resulting transcript. So asking the witness one more thing, brings very little risk. A typical examination for discovery of one party will last a half day at least, and many take some days to complete.
Cross-examination has many possible aims. Cross-examination at trial is very similar to cross-examining a witness (without any trial) on his or her affidavit (under R. 6.7).
The most important truth about cross-examination is how dangerous it can be for the party examining. That is because cross-examination is considered all to occur before the court. Any party can use any part, or all, of the resulting transcript. A judge or master can spontaneously read the transcript of a cross-examination. So one or two bad answers on cross-examination can sink a party's whole case. Experienced counsel therefore are wary of cross-examining, and will often ask only a few well-considered and researched questions. Or not cross-examine at all. An old maxim says never to ask something in cross-examination unless you know what the answer will be. It is a good rule of thumb. Many a lawyer has bitterly regretted disobeying that maxim. In cross-examination, curiosity often kills the cat.
A recent decision emphasizes the differences between examining for discovery and cross-examining, and the dangers in using the word "questioning" for two things so different. See Rieger v. Plains Midstream Can. 2019 ABQB 666, JCC 1201 07932 (Aug. 28) (¶ʼs 5-7). The court concludes that therefore asking the witness for an undertaking should ordinarily be treated differently in the two different procedures.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
