Monday, 24 February 2014

Ready, Set, Go: Trial Time

It all started with a simple, unassuming email from a Senior Lawyer, “Come see me when you have a chance please.” It quickly went uphill from there. The lawyer indicated that he had a small claims court file that had gone to multiple settlement conferences and none of the three parties were willing to budge. “It’s going to trial in 2 months” he said, “Do you want to handle it?” Unsure whether or not this was a rhetorical question I emphatically answered with a “Yes!” After all, this is what we live for.

This is both the best and worst part of trial preparation....

I quickly took the file and began looking through it to understand what was going on. It’s difficult to pick up a file that has been ongoing for almost two years and try to understand everything that has happened. Also, this file was fairly technical and quite complicated, but that didn't bother me.

Trial preparation starts long before trial.
All documents that you are relying on, as well as a list of proposed witnesses, must be served 30 days prior to trial. This means that you have to start gathering your documents and building your case well in advance of that deadline. I tediously gathered all the documents that helped my position and drafted a brief that presented them in a manner that was easy to follow and in support of my arguments. As the deadline for service approached I finalized and sent my document brief and list of proposed witnesses to the opposing parties. Shortly thereafter, an Offer to Settle went out, so that you can take advantage of the cost consequences in the event of a successful trial.

That’s when the heat gets turned up.
When all parties are able to see the documents being relied on by the other parties, and their cases become clearer, you can’t help but compare it to your case and wonder how you will fair at trial. This is both the best and worst part of trial preparation. This is also followed by many rounds of conference calls with opposing counsel trying to narrow the issues for trial and trying to build up your case while looking for insight into theirs.

Its crunch time.
Before you know it, trial is a week away. You’re now fine tuning your trial strategy, preparing your questions for your own, and adverse witnesses, preparing your opening statement and going over your documents to make sure you won’t be surprised at trial.

Then, 3 days before trial, when you’re at the peak of preparation, you get “the call”. The plaintiff accepted the defendants’ offers to settle. Case settled. Trial cancelled. A part of you is disappointed that you didn’t get to go to trial and test your ability to effectively argue your position before a trier of fact. However, your client is thrilled that the matter was able to settle without the uncertainty, and cost, of going to trial; and at the end of the day, that’s the most important part!
David O.