Tuesday, 28 May 2013

My first solo trial... what a rush!

As the Articling term started to wind down, I was gearing up – for trial! Last week I had my first Small Claims Court Trial. I was defending a veterinarian against allegations of professional misconduct and lack of informed consent. To prepare, I pored over medical notes and records, including consent forms and authorizations, met with the veterinarian to prepare her for examination-in-chief and cross examination and got very familiar with the rules regarding expert evidence.

"...having studied the case law on expert evidence, I had a strong feeling these articles were inadmissible as evidence."



You see, in professional misconduct actions, the law is very clear that due to a professional’s specialized knowledge in their area of expertise (i.e. a veterinarian in veterinary medicine), expert evidence is needed for the plaintiff to satisfy its burden of proof. Without an expert report, or expert opinion evidence, it is highly unlikely that the plaintiff will be able to succeed.

In this case, the plaintiff served us with a Document Brief which included numerous articles on veterinary disease. When I received the Brief, having studied the case law on expert evidence, I had a strong feeling these articles were inadmissible as evidence.

At the outset of trial, I asked the judge to make an Order excluding most of the plaintiff's Document Brief on the basis that it included articles on veterinary diseases and there was no one qualified to introduce the exhibits. The judge agreed, granted my request, and as a result, plaintiff’s counsel was extremely limited in her questioning. The Judge ultimately dismissed the claim as the plaintiff had not met his burden of proof!

It felt great to succeed at my first trial and even better to make the client happy. While the trial was a lot of hard work, it was a great experience and I can’t wait for the next one….  What a rush!
RS

No comments:

Post a Comment