Friday, 31 March 2017

My Experiences at Settlement Conferences

During my time in Law School, I took several negotiation and Alternative Dispute Resolution (ADR) classes. In these classes, we experimented with different types of negotiating styles and strategies. Throughout my articles with MB, I have had the opportunity to apply what I learned in school to real-world scenarios and to further develop them in the context of settlement conferences. Accordingly, here are the top five lessons I have learned:

Managing client expectations can be critical....

Know your File

Knowing the ins and outs of your file will allow you to take part in meaningful discussions in order to possibly settle the file. Even if the matter doesn’t settle, I have found that knowing your file well will allow you to ask the right questions, enabling you to fill in any gaps of information in the file, which will assist you in the long run.

Put your Money where your Mouth is

The ultimate purpose of a settlement conference is to settle a matter. This will not be possible if one attends without the authority to settle. This is why it is critical for you to attend with settlement authority or with someone who has such authority. Interestingly, Rule 13.02 of the Rules of the Small Claims Court requires the party and their representative (if any) to participate in the conference either by personal attendance or by telephone/video conference.

Manage Expectations

Managing client expectations can be critical to maintaining a positive ongoing relationship with the client. I have found it fruitful to take some time prior to the settlement conference to speak with the client and go over what to expect such as the risks of going to trial and the weaknesses of the case. This discussion can make settlement much more likely to occur. For instance, when discussing the potential issues when enforcing a judgment, a client may prefer $5,000 immediately as opposed to expending further resources to collect $10,000 over a period of time.

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Integrative Negotiating

I have found that this method works well for me and has led me to obtain successful results. This form of negotiating refers to uncovering the deeper interests/stakes of the parties so as to allow for a more meaningful discussion. The famous “orange” example demonstrates this model of negotiating. Specifically, two individuals are fighting over an orange. As a form of resolution, the two individuals simply split the orange in half. On the surface, this appears to be a fair deal. However, if the parties had taken the time to uncover their true interests, they would have realized that one of them only wanted the orange peel for its zest and the other wanted the orange for its juice. Had the parties employed this method they would have each gotten 100% of what they wanted rather than just 50%.

Live to Fight Another Day

I have found that sometimes a file is simply not ready to be settled. Perhaps all necessary documentation has not been exchanged or another issue has come up such as the spoliation of evidence. Therefore, rather than attempting to force settlement and risking an unfavourable settlement, it may be a better idea to obtain consent of the parties and adjourn the matter to a later date.

Monday, 6 March 2017

Assisting on a Jury Trial: A Quick Reference Guide

A month into the articling term, I was asked to assist on a three-week jury trial alongside a partner and an associate at the firm. To assist future students, I have prepared a quick reference guide that I hope will prove beneficial.

...create a reference binder for yourself of all the key documents...

Master the Background Material

To ensure you are able to assist in the best manner possible, learn the case from both a plaintiff and defence perspective. An excellent starting point is reading (and re-reading) the pre-trial memorandums prepared by both plaintiff and defence counsel. It is important to understand not only the difference of opinions of the law but also the factual details in dispute. Facts matter.

After this, create a reference binder for yourself of all the key documents, including the pre-trial memorandums, expert reports, memorandums and summaries that have been prepared by you or your colleagues. So when receiving instructions from the partner or associate, you will have quick access to key documents in order to be ready for any inquiry posed by them.

On-Call 24/7 for Each Day of the Trial

The nature of a trial means that unanticipated tasks will need to be completed before the trial commences for the day, while the trial is being held, and after the trial convenes for the day.

The partner and associate will undoubtedly be preparing well before the trial’s start-time of that day and may need assistance with the preparation of documents, or assistance with the witnesses who will be testifying later that day. As such it is imperative that you are physically accessible to assist them before they leave for the day.

Moreover, as the trial progresses throughout the day, unanticipated issues may arise. The partner or associate may take a few moments during a break to email you a quick research task. It is important that you are available, efficient, and effective during these small windows of opportunity.

When the trial convenes for the day, again be on-hand to assist the lawyer as they prepare for the following day of trial. This may include, researching points of law, drafting submissions, and preparing other court documents that will be used during the trial.


Observe & Learn

While assisting, ask the partner and/or associate, which days would be best for you to attend and observe the trial. This will allow you witness not only a part of your work come to life, but also the strong advocacy from both plaintiff and defence counsel, their interactions with the jury, and equally important, their exchanges with the trial judge.

Fortunately, I was able to witness the opening statements by the partner from our firm, as well as the senior opposing counsel, where each took a different strategic approach when addressing the jury. I also witnessed a contentious cross-examination of the plaintiff, whereby, part of the background factual research I conducted earlier in the day was used to effectively cross-examine the witness.

After three fast-paced weeks, the jury came back with a verdict in our favour!