Pre-Trial Conferences: Down to the Wire

Television shows like The Good Wife or Suits often glamourize the life of the lawyer, and make it seem like trials are an everyday occurrence. Many of these legal dramas showcase a different trial in each episode. The reality, though, is very different. The scarcity of judicial resources, coupled with the financial burden and the extraordinary length of time spent litigating matters means that the legal system is inclined to push for settlement before trial. However, there are times when matters simply cannot be resolved. It is then that lawyers must take on the task that we see so often on television, and proceed to trial, complete with witnesses, robes, and sometimes even juries.

...the parties agreed that a pre-trial conference might be the best route towards agreement on some issues...

For the last few weeks, I have had the opportunity to assist with one of the upcoming trials at our firm. The case was complex, with multiple parties and many issues in contention. In fact, the trial was originally scheduled to go on for several weeks! With the start date looming, and with the knowledge that a protracted trial would not be in anyone’s best interests, the parties agreed that a pre-trial conference might be the best route towards agreement on some issues, if not a final resolution.

Pre-trial conferences are one of the last few opportunities for parties to sit down and attempt to reach a settlement before proceeding to trial. In many ways, a pre-trial conference is like a mediation, only in a more formal court setting. A judge will offer his or her candid advice on the prospects of success for the parties at trial, and suggest opportunities for resolving the dispute. More often than not, matters will be resolved at these pre-trial conferences.

Having worked on this file beforehand, I knew that an actual settlement was unlikely. This would be the second pre-trial conference after the first had failed. The parties had strikingly different positions on the legal and factual issues. Nevertheless, I still jumped at the opportunity to attend the conference and see how things would end up.

Mr. Justice Todd L. Archibald

On the exact same day as this second conference, our firm held a client seminar on pre-trial conferences.  The attendees were very fortunate to be joined by Justice Archibald, who provided his personal insights on how these conferences are run, and how parties should approach such conferences. As luck would have it, both the mock pre-trial and the actual pre-trial conference were led by the same judge!

While at the seminar, Justice Archibald shared his thought process when presiding over a pre-trial conference. At the very beginning, His Honour would speak to counsel to obtain a lay of the land. This would afford him an opportunity to gauge the matter and each parties' respective positions. This also allows counsel to be candid about their positions without the added pressure of having their clients present. Justice Archibald then holds individual caucuses with each party and their counsel. He attempts to be as honest as he can be, and tell each party where they stand; where their positions are strong, and where it may be a better idea to back down. By being forthright in his opinions, Justice Archibald has been able to settle a vast majority of the cases put before him. In fact, he was similarly able to quickly settle the mock pre-trial conference held at the seminar in a record 60 minutes! (But he did stipulate that these proceedings would, in fact, take a day or two to get all parties to this stage.)

MB's Transportation Mock Pre-Trial

Having heard all of this at the seminar, I was eager to see how Justice Archibald would be like in a real pre-trial conference. It quickly became clear that everything he shared was true. From his approach to speaking with the various parties, to his incredible ability to quickly cut to the chase, Justice Archibald showcased all the methods he discussed when managing this conference. And, just like at the seminar, Justice Archibald was able to settle this real legal case too.

So, unlike those legal dramas I mentioned earlier, I won’t get the opportunity to watch this case unfold under the auspices of a courtroom. But, what matters most is that everyone involved obtained results that led to a just and final settlement.

Go to MB’s Mock Pre-Trial Handouts page to read the Mockuments: Fact Summary, Pre-Trial Memos, and the Case Summary.

Victoria M.

Legal Practice versus TV Legal Dramas

Many of you may be following this blog because you are wondering what it’s like to actually work in a law firm. I know I was. And if you’re like me, many of you are also fans of Suits, The Good Wife and How to Get Away with Murder. There was an earlier blog post titled Comparing Reality to the Suits TV Show…, which talked about how legal practice is similar to legal dramas. Here are the major differences.

Working in a law firm is (usually) not that dramatic.

“Civil” Litigation
One of the things that shocked me the most when I attended examinations for discovery, pre-trial and settlement conferences was that lawyers are actually very polite and civil to one another. This is in stark contrast with the cutthroat, irrational and unreasonable behaviour that is often depicted on television.

One reason for the civility may be the relatively small size of the Ottawa bar. I’ve personally run into my professors five times now! Lawyers often oppose the same law firms or counsel on numerous occasions. Acting courteously, therefore, maximizes the potential for cooperation in future cases, paves a foundation for a professional relationship and protects your reputation.

In mock trials and moots, law students often practice proper decorum by referring to the opposing side as our friends. In legal practice, lawyers might literally be friends with their opposing counsel outside of their clients’ conflict.

And Action… (where’s the camera?)
Depositions are referred to as examinations for discovery in Canada. Examinations for discovery are not filmed. The audio is, however, recorded and a written transcript is produced by a court reporter, so lawyers have an opportunity to catch the person being examined in a lie if he/she changes his/her testimony by the time the case goes to trial ;)

And Cut…
Don’t expect disputes to be resolved within a one-hour episode. Litigation can span months or years since there are many steps within a legal action. Television shows often glamourize and focus on various proceedings, but rarely show the research and preparation that goes into preparing for a trial.

That’s a wrap!
Because the whole process can be very time-consuming and costly, the parties to litigation often settle the dispute before the action goes to trial. For those reasons, lawyers do not appear in court as often as it is depicted on television.

All in all, I am relieved the legal practice is not as dramatic as how it is depicted on television. The “behind the scenes” work has also made my first summer working in civil litigation interesting, challenging and realistic! However, I am looking forward to my first day in court.

Tiffany S.