Trial Tips and Tricks, February 2, 2010

Sarah Boulby B.A. (Hons.), M.A., LL.B. (Toronto)

Overview

Most family law cases settle long before trial. Given the immense expense and emotional stress that trials place on litigants a case that is taken to trial is in some sense a failure of the court, parties or clients in some combination. Some cases will inevitably have to be tried to be resolved because they present unresolved legal issues or more frequently there is a failure of either parties or counsel or some combination thereof to realistically assess the case and settlement options. The best trial preparation starts early in a case and, paradoxically, the better the trial preparation the more likely that the case will settle along the way. In the event that a trial is unavoidable, chances of success will be greatly enhanced by thoughtful trial preparation.

Trial preparation cannot start too early. Before an applicant takes steps to initiate a lawsuit he or she should have thought through the nature of the claims and their strength in light of the relevant legal principles and the available evidence. Counsel should from the day he or she is retained start to formulate a theory of the case and continue to revisit that theory throughout the retainer to trial, if that must be the result.

The practical steps of trial preparation start around the time of the settlement conference. Those are the subject of this paper and my attached trial preparation checklist.

Settlement Conferences/Trial Management Conferences

A settlement conference should be an opportunity to resolve a case. For a case to have a chance to settle, the conference must be held at a point at which both parties have full information about their respective cases, disclosure is complete, expert reports have been exchanged and each party has delivered a global offer to settle. If one or both parties appear at a settlement conference ill-prepared the day will be wasted and the considerable expense in preparation and attendance.

If a settlement conference does not achieve its goal, which is resolution of the dispute, it still plays an essential role in bringing a matter to an efficient trial. When best intentions have gone awry or perhaps the other party has raised a new issue or angle, it may be necessary to complete financial disclosure. At the settlement conference orders can be obtained for questioning, preparation of affidavits of documents, or disclosure of specific outstanding documents.

If either party needs to amend his or her pleadings the settlement conference judge may make that order. The settlement conference judge may also make orders to establish a rational schedule for trial preparation including the exchange of any further expert reports, lists of witnesses to be called and for the disclosure of will says for each witness.

Different jurisdictions vary in how settlement conferences and trial management conferences are used. In some courts it is possible to have the trial date set at the settlement conference and to avoid or hold a joint settlement conference/trial management conference. In other courts, the trial management conference is held to deal solely with trial process issues without any expectation or effort to discuss settlement. Not mentioned in the rules but present in a number of courts is the practice of holding exit pretrials or exit trial management conferences a few days before the trial date as a last ditch settlement effort.

Some courts still do not set fixed trial dates but simply place cases on a trial list where the case may or may not be reached at trial sittings held for a fixed number of weeks each year. A fixed trial date simplifies trial preparation and removes the need for duplication of such efforts. The attached checklist is designed for a fixed trial date. If preparing for trial in a trial list jurisdiction the first date of the trial sittings should be treated as the trial date for deadlines to be on the safe side. If the case is not reached at a trial sitting, then there will be no option but to repeat many of the steps (such as updating financial statements) at needless expense to the client.

Evidence

At all stages counsel should be refining the theory of the case. This involves keeping up to date on the relevant jurisprudence. Before the settlement conference counsel should thoroughly review the case law. After the settlement conference, counsel should carefully review the legal argument and what evidence needs to be called to prove each point in the case. For each necessary fact, counsel needs to determine how it will be proven in the trial. Will a witness testify to it? If so, who? How credible is that potential witness? How available is the witness? Is what is needed to be proven opinion evidence? If so, is there an available expert? Has a report been delivered? Does a document demonstrate a necessary fact? If a document demonstrates the fact, does counsel have it? Has it been disclosed? How will the document be led into evidence?

Family law trials are often complex even ones where the financial stakes are low. Typically there are many facts to be proven and many issues. It is the responsibility of counsel to narrow what is in dispute as much as possible. The purpose of the discovery process is to narrow issues and facts in dispute. No trial judge nor client will thank counsel who take all issues to trial necessitating days of evidence to permit the trial judge to make findings on every issue great and small. To that end, counsel should endeavour to settle facts and issues cooperatively where possible. Clients should be encouraged to compromise on small issues to save trial time. This can be done informally, to be confirmed by agreement or a party may choose to deliver a Request to Admit to narrow facts in dispute and obtain admissions as to the legitimacy of photocopied documents. In the best of worlds the opposing party will respond in good faith to the Request to Admit thereby narrowing the issues. In any case, a recalcitrant party who refuses to admit facts that are self-evident will face costs sanctions. In preparing a Request to Admit keep in mind that it will be most useful if it is excruciatingly clear. Specify each fact separately, simply and without argument. Leave no room for obfuscation or confusion by the opposing party. Don’t wait until the last minute to serve a Request to Admit. It will be most useful if delivered well in advance of the trial so that you know with some certainty what facts are admitted and on which you do not need to expend further energies gathering evidence.

Preparing your Client

The client should be at the centre of trial preparation. This is the client’s case and without doubt a family law trial is of monumental importance to him or her. Counsel should try to prepare for trial from the client’s perspective. Most clients have little interest in exciting legal arguments or the thrill of the contest. The client is interested in the result and the cost to get there. A decision on the cutting edge of jurisprudence may burnish the lawyer’s reputation but will not enthuse the client if at the end of the day he or she is worse off than taking a pretrial settlement. Clients need to be fully informed of their case and so able to make appropriate decisions.

To that end, after the settlement conference, counsel should provide a reporting letter to the client setting out the state of the negotiations, any judicial advice received, the merits of the respective offers to settle, the anticipated costs of trial and any required trial retainers for counsel or experts and a detailed schedule of what the client needs to do and when it must be done by.

As the trial preparation continues the client will be closely involved in collecting documents, finding witnesses, and in getting ready to give testimony. An informed client who makes the final decision about whether to take an offer to settle or go to trial is much more likely to be a happy client or at least a resigned client if the trial does not work out as hoped.

Offers to Settle

By the settlement conference both parties should have made serious offers to settle. The scope of settlement is often much broader, however, than the options available to a trial judge. At some point between the settlement conference and the trial, counsel needs to review the existing offer to settle and decide if it needs to be replaced. The primary purpose of the final offer to settle outstanding as the trial commences is to protect the client on costs. Obviously it also needs to be an offer that the client is prepared to live with if accepted. To protect on costs, the offer needs to comply with R. 18 of the Family Law Rules. The formal requirements are that the offer be signed by both counsel and the client. The offer needs to be open until the commencement of the trial and, to provide an enhanced chance of the client receiving a costs order on a full indemnity basis, it needs to be served 7 days before trial.

Aside from the formal requirements of R.18, to be truly effective the offer needs to be simple and along the lines of what the trial judge may order. When making costs submissions it needs to be clear to the court how the final offer measures up against the orders granted. If it is not clear, then the offer will not be helpful. In an appropriate case it may be a good idea to provide severable offers that permit the opposing party to settle one issue but not another. For example, parenting issues may benefit from being dealt with as part of an offer to settle that a party can accept while still fighting on the financial front. This may help narrow the issues for trial but it also may help on costs if your client is more reasonable on some issues than on others.

Costs

Costs are a crucial element of any trial. The outcome to a client cannot be weighed without taking into account the cost considerations. A trial that appears to have been won will be but a pyrrhic victory if the cost consequences overwhelm the result. To protect your client’s position on costs counsel must make sure that prudent offers to settle are made from early on in the proceeding with a realistic offer open at the commencement of the trial. Throughout the proceeding at ever court appearance counsel needs to ask that cost consequences be determined at every step or at least expressly reserved to the trial judge. Otherwise it will later become impossible to recover costs for motions, case conferences, settlement conferences and trial management conferences.

Costs are argued at the end of the trial, often by written submission. The party claiming costs should prepare a proper bill of costs. Barring unusual circumstances the bill of costs should show legal fees on both a full indemnity and partial indemnity basis. The submissions themselves are best delivered in a brief format as the law on costs is fairly straightforward and very familiar to trial judges.

Trial if necessary, but not necessarily a trial ...

For every stage of trial preparation through to the conduct of the trial itself, the key is sound preparation coupled with effective communication with opposing counsel and your own client. The attached trial preparation check list can be adapted to meet different needs of particular cases or counsel’s preference. What matters is meticulous organization and knowledge of the file coupled with an unwavering focus on achieving the best result for the client.

Trial Preparation Checklist

Sarah Boulby, Basman Smith LLP

1. FINAL SETTLEMENT CONFERENCE/TRIAL MANAGEMENT CONFERENCE

In preparation for the settlement conference or combined settlement conference/trial management conference:

a. Review theory of the case;
b. Review and update legal research;
c. Deliver Offer to Settle;
d. Check any restrictions on availability of your witnesses for trial;
e. Review pleadings to determine if any amendments are required.

At settlement conference/trial management conference:

f. Make a good faith effort to settle;
g. Obtain trial date;
h. Obtain an order to amend pleadings, if necessary;
i. Obtain any orders required to complete discovery process (affidavits of documents, specific documentary disclosure, or questioning) if that has not already taken place.;
j. Obtain orders for a reasonable schedule to take the case to trial in an orderly fashion, including dates of delivery for expert reports and a date for the parties to confirm to one another the witnesses he/she intend to call at trial and will says with respect to each witness.

After the settlement conference/trial management conference:

k. Send a reporting letter to the client on the outcome of the conference, the judge’s advice, the chances of settlement and your advice on settlement. Include in the letter a clear statement of what the client is required to do in preparation for trial and the timelines.
l. Make clear to the client (if not done already) what your trial retainer will be and put it in writing with a timeline for the client to pay.
m. Make a written trial preparation plan and incorporate it into your tickler system

2. EVIDENCE:

Review what evidence is required to prove your client’s case and to undermine your opponent’s case. To that end:

a. REQUEST TO ADMIT

-Consider whether serving a request to admit will assist in narrowing the issues. If so, prepare one pursuant to R.22 of the Family Law Rules to admit facts and documents. Once served the other party has 20 days to respond or be deemed to have admitted the listed facts and authenticity of the listed documents.

b. EXPERTS

- Confirm the trial date and any report delivery dates with the expert and his/her trial retainer requirements if any;
- Advise the client in writing of any actions or information required by the expert and of the expert’s retainer requirements;
- Review your expert report to identify the assumptions that the expert has made and what facts or legal arguments you must prove to support those assumptions ;
- Review the opposing side’s expert report with your expert to identify points of weakness whether in the analysis, facts or legal assumptions so that you are prepared to expose them.
- If there is no date for delivery of an expert report the Family Law Rules provide that the report be delivered no later than 14 days before trial. R.23(23). The expert report must comply with the formal requirements of R. 23(23), that is it must be signed, set out the expert’s name, address and qualifications and summarize the proposed evidence.

c. WITNESSES

- Identify who you need to call to prove your case.
- Interview each witness (if you have not done so already).
- Advise each witness of the trial date.
- Identify any potentially unwilling witnesses for whom a summons must be issued and served (R. 23(3) and 23(4))

d. DOCUMENTS

- Identify any documents that you may require to prove your case.
- If you do not have these documents yet, get them
- Review each document to determine how it will be admitted into evidence considering: (a) whether the document has not yet been disclosed and needs to be;
(b) which witness can identify it as an exhibit;
(c) whether a copy of the document has been admitted pursuant to a Request to Admit;
(d) whether a Notice of Business Records needs to be served under the Evidence Act. If so, the deadline for that is 10 days before trial.

e. QUESTIONING TRANSCRIPT

- Consider whether any portions of the questioning transcript of the opposing party should be read into evidence R. 23(13)

f. FORMS

- Review the Net Family Property statement relied on at the settlement conference/trial management conference to see if any changes are required. A final Net Family Property Statement must be filed no earlier than 30 days and no less than 7 days’ before trial but should be ready much earlier than that as a building block to other preparation. (R.13(14)

3. TRIAL RECORD

- Applicant must serve and file the trial record 30 days before trial (R.23(1)). R.23 specifies precisely what documents should be included in the trial record;
- If possible Applicant should cooperate with Respondent to provide one comprehensive Trial Record
- if not, and the Respondent requires further items be included, the Respondent may file a Respondent’s Trial Record 7 days before trial (R.23(2))

4. TRIAL OFFER TO SETTLE

- For cost purposes, each party should deliver a trial offer to settle. The timing is a tactical question to be decided in each case. The offer should be delivered at least 7 days in advance of trial and must comply with Rule 18 of the Family Law Rules in form
- A trial offer to settle should be simple and along the lines of the type of order that the trial judge may make. This is not the time for creativity. The offer needs to be easily measured against the final result in any costs submissions.

5. TRIAL FINANCIAL STATEMENT

- Each party must prepare an updated financial statement at least 7 days before trial for the applicant and 4 days before trial for the respondent R.13(12)4
Notify the client of this obligation as soon as possible and set a reasonable timeline to prepare a meticulous financial statement with full supporting documents.

6. RESEARCH

- Update your legal research on an ongoing basis throughout trial preparation
- Prepare the cases on which you rely and your response to cases on which you expect your opponent to rely for the closing argument
- Identify any obvious legal issues that may arise during a trial such as evidentiary objections you expect that the other party will make and prepare legal arguments and case law in support of your position to have in reserve.

7. BRIEFS

(a) Document Briefs
- If possible prepare joint document briefs with opposing counsel
- in any case, prepare document briefs as soon as you have a final list of documents. You will require four copies (you, opposing counsel, judge and witness). Having the document briefs ready early will aid witness preparation

(b) Books of Authorities

- Prepare these to provide the judge and opposing counsel at the opening of trial. You will need three copies of these with the relevant portions highlighted.

(c) Orders Brief/Financial Statement Briefs

- the trial record should contain orders and financial statements. However if as often is the case the trial record is unmanageably large, assist the court by providing a brief of all orders and a brief of each parties’ financial statements. Prepare these to provide to the court at the opening of the trial.

8. WITNESS PREPARATION

- Arrange a schedule to meet with all witnesses, typically within a week or two of the trial
- Run through a mock Examination in Chief of your witnesses to find out what they are planning to say and to make sure that they understand what to expect in the courtroom.
- Ensure that the witnesses review all financial statements, affidavits and/or questioning transcripts in which they have made prior statements.
- Ensure that the witnesses have freshly reviewed the relevant documents
- Plan your cross-examination of the opposing parties’ witnesses

9. OPENING STATEMENT

- Prepare an opening statement . Usually in family law it is advisable to prepare a written opening statement as a guide to the judge, particularly in a financial case where there may be precise numbers involved.
- In a support case, the opening statement should include Child Support Guideline calculations, SSAG calculations and Supportmate calculations as schedules where relevant;
- In an equalization case, the opening statement should include the Net Family Property Statement as a schedule
- this should be served and filed in accordance with any timelines set by the particular court or on consent of the parties, typically 7 days before trial

10. CLOSING STATEMENT

- Prepare a roughed out closing statement linking the facts to the law the week before the trial. During the trial this can be refined to reflect the evidence actually led at the trial. Complete this during the trial
- A closing statement may be in writing or oral, depending on the wishes of the court. Be prepared to accommodate the judge’s preference

NOTE: The Family Law Rules are under review and some of these timelines may change. The best practice is to review the rules at the outset of trial preparation and to check the practice in the particular court in which the trial will be held.

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Contact

sboulby@basmansmith.com
416-860-1996
1 Dundas Street West
Suite 2400
Box 37
Toronto, Ontario
M5G 1Z3

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