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.

Keep Your Eyes on the Prize

matters are very often resolved without judicial intervention, sometimes on the eve of a motion or trial...

As articling students, we often assist on motions or trials that require several hours of preparation before a hearing date. We conduct our research, draft our materials, and wait with anticipation for the hearing date that took months or years to obtain. However, these matters are very often resolved without judicial intervention, sometimes on the eve of a motion or trial. Even if the result is advantageous, the anti-climax, at times, can be quite disappointing.

As is often the case with the litigants themselves, we wanted our day in court. It is sometimes difficult to keep our eyes on the prize; we won without having to go through the risk of the motion or trial. This completely reasonable intellectual rationalization offers little comfort to an articling student, whose time and effort seems to have been for naught.

I have found solace in another, equally valid rationalization; the positive result or resolution would never have been possible without the preparation for the motion or trial. One’s strategic position can be significantly altered when an opposing party reads well-researched, well-written materials. At that point, a master or judge may no longer be necessary.

Therefore, while the drama may be somewhat muted, I have learned to take an advantageous result obtained before a motion or trial as what it is: a win that was earned.

Eric K.

Cross Examinations and Closing

Since David covered trial prep, I'm going to focus on the most exciting part of going to trial: examining witnesses and making submissions to the court. In reality, the vast majority of trials settle - whether on the eve of or just a few weeks before - so you don't get to experience the actual trial often. However, I lucked out and was asked to assist a lawyer who was going to trial on a file that was likely not going to settle.

I was allowed to conduct the direct examination of the policyholder who attended the scene of the accident.

Once in court, the lawyer introduced himself as the leading lawyer, and then in open court, introduced me, the student-at-law, who would be assisting. It was awesome. He did the opening, and the first examination of our insured and then handed the proverbial reins over to me. I was allowed to conduct the direct examination of the policyholder who attended the scene of the accident. Everything went (mostly) to plan, and I officially had my first real examination - transcript and everything.

The trial continued throughout the day, and we adjourned for 3 weeks. Naturally, I asked what else the lawyer needed help with. Along with updating the examinations, he advised that I was to choose between the cross-examination or the closing submissions. I was slightly nervous about cross-examining our colourful defendant and picked the closing. I was instructed to prep the submissions entirely and the lawyer would review to make any necessary changes.

On the morning of day two of the trial, he told me to do exactly what I prepared. I was so excited! Granted, I got a pretty silly case of shaky hands, but I did the entire closing, on my own. I set out for the court what evidence we called, the law we were relying on, what we wanted the judge to decide, and what we were looking for in terms of costs. I also answered the judge's questions, which actually went easier than I expected.

Although the whole experience was a great one, the icing on the cake was having the judge rule entirely in our client's favour! So, seven months into Articling, I now I have trial experience!

Alyssa C. 

No Shortage of Excitement...

Here we are... week 5 of the blog already! This blog is meant to be a window into the articling experience here at MB and, as my fellow students have set out in previous posts, there is no shortage of exciting things to talk about.

For example,