Wednesday, 9 April 2014

Prepping for trial... next week Kenora

...something like 98% of cases settle prior to trial...

Trial is one of those things that seem to occur less and less often these days. In fact I think the statistic is something like 98% of cases settle prior to trial. The fact that a trial is so expensive and time consuming it really motivates clients to act reasonably, assess litigation risk and make meaningful attempts to settle.

Every once and a while, though, a lucky articling student gets the opportunity to participate in one. Next week I'm flying to Kenora, Ontario to do just that.

Before then there's about 100 things that need to be done:
  • Final Rule 49 Offers need to be exchanged. At this point it’s likely that many offers have already been exchanged and the parties might be close to a settlement. That said, formalizing the offers increase the litigation risk to the opposing parties.
  • Witnesses need to be prepared and Summons to Witness need to be issued and served. It will be hard to prove your case if your witnesses aren’t there. Fortunately, there’s a form for that
  • Request to Admit (and responses to same from the opposing parties). This is your last chance to have the opposing parties make it easier on you to prove your case. Anything they admit you don’t have to prove at trial. Furthermore, if they refuse to admit something and you end up proving it at trial then there are cost consequences in your favour.
  • Notice of Intention under the Evidence Act. If there are any documents you’d like to rely on, such as clinical notes and records, police reports, or other business records, putting them in a Notice of Intention Under the Evidence Act, will allow you to introduce them as evidence independently.
  • You have to prepare, draft, and practice your opening and closing Submissions, examinations-in-chief, and cross-examinations.
  • A fact um needs to be drafted, although changes will likely need to be made during trial depending on the evidence that is elicited and much, much, more.
Now you might think that if the case has come this far a lot of this work has already been done and in most cases this is true. But this is trial were talking about and everything needs to be 110%. In all honesty, trial prep is one of the best learning experiences a young (near-)lawyer can get and certainly the most exciting. You learn a file inside and out, you research, learn and help create a persuasive argument, but most of all you get to make an impactful contribution to the disposition of the matter.
Justin A.