The Virgin Diary Part II – My First Pretrial

I was recently given the opportunity to assist a lawyer on a claim involving a motor vehicle accident. The matter was coming up for a second pre-trial conference, which is one of the last opportunities for the parties to settle the dispute.

After researching different areas of the law, drafting the pretrial brief and
compiling the documents, I was prepared to attend the pretrial conference.

I had taken courses in alternative dispute resolution in law school and attended mediations but I didn’t really know what to expect from a pretrial conference. At a pretrial, there is a judge guiding the parties, trying to bring the parties towards a settlement. I was unsure how this was going to look and how this would affect all the parties’ arguments and settlement positions.

The pretrial took place in a setting resembling that of a boardroom with the judge sitting at the head of the table and the parties sitting on either side.

Below are my top 5 discoveries from the pretrial conference:

The judge means business. After walking into the room the judge immediately asked for updated settlement numbers and whether the parties were any closer to settling the matter. No pleasantries were exchanged or small talk was had.

Turned into a mediation. The judge thought it was best for the different sides to be in separate rooms and for the judge to go back and forth between the rooms like in a mediation.

Be ready for anything. No matter how much you prepare and how well you know the law, unanticipated questions and issues of the case arise. As such, it is imperative that you are quick on your feet and can find the answers in your materials as quickly as possible.

Settlement negotiation is an art form. Each lawyer has their own unique negotiation style and technique. Sometimes a lawyer will use more than one style depending on the issue being debated.

Coming close but not close enough. In this claim, there were many issues in dispute both in liability and in damages. As a result, it was very difficult for the parties to make a deal. However, on many issues, the parties made substantial ground and came much closer to a settlement.

Overall, the pretrial conference was a great experience and I look forward to being exposed to many more new opportunities as articling continues.

p.s. Read The Virgin Diary Part I - Mediations

by Israel K.

The Art of Settlement: Lessons Learned from My First Pre-Trial Conference

Early into my articling term, I was given the opportunity to assist a lawyer on a claim involving a motor vehicle accident. The matter was coming up for a pre-trial conference, which is one of the last opportunities for the parties to settle the dispute. Having been asked to assist with the materials,

"I reviewed the file, drafted the pre-trial brief, and
was ready to attend my very first pre-trial conference."

In law school, many of the oral advocacy courses that I took involved mediation or some form of negotiation. However, I didn’t really know what to expect from the pre-trial. When asked, the lawyer described it as an informal discussion with a judge to help the parties narrow the issues to essentially reach a settlement. This description turned out to be fairly accurate.

The pre-trial took place in a setting resembling that of a boardroom. Soon after the judge entered the room, he attempted to gauge the parties’ appetite for settlement. He also wanted to learn about the main barriers to settlement. I was amazed at how the lawyers, after a series of caucuses with the judge, were able to pinpoint the issues in a relatively short period of time and ultimately come to an agreement.

Below are my top five takeaways from the pre-trial conference:

1. Preparation is key. It is very important to know the facts of your case inside out. This will help you narrow the issues and make the most of the opportunity to obtain a settlement.
   
2. Be confident in your position. This can be achieved by understanding the strengths and weaknesses of your client’s case and anticipating the arguments of opposing counsel. When you are confident in your position, you have a better chance of convincing the other side to consider your point of view.
   
3. Times flies - use the time effectively. You only have two hours with the pre-trial judge. While settlement discussions may continue after the pre-trial, it is important to use this time effectively if the parties wish to settle the matter.
   
4. Settlement negotiation is an art form. Like all art, it requires practice. Each lawyer has their own unique negotiation style and technique. It is only by practicing and observing others that you will be able to develop a negotiating style of your own.
   
5. Pre-trial judges act like mediators. The pre-trial judge, in this case, had reviewed all of the materials in advance and was therefore very helpful in evaluating the positions of the parties to facilitate settlement.

Overall, the pre-trial conference was a valuable learning experience. I hope to use what I have learned at future pre-trials and settlement conferences.

Andrew V.

Let the Games Begin: How Negotiation Competitions prepared me for my First Trial

I am happy to report that I argued my first case in the Small Claims Court and lived to tell the tale! I was representing the plaintiff in a hotly contested matter against an experienced opponent. The deputy judge reserved judgement so while we don’t yet know whether the court ruled in favour of my client, I felt well-prepared for the trial and can’t wait for my next opportunity to appear in court.

I was representing the plaintiff in a hotly contested matter against an experienced opponent.

I encourage any law students reading this. Get as much advocacy practice you can while you’re still a student. In my third year of law school, I spent a great deal of time preparing for and participating in national and international negotiation competitions. Along with a partner, I negotiated in front of practicing lawyers, businesspeople, and academics who had volunteered to judge the competitions. The judges were eager to provide feedback which encouraged participants to become better negotiators and advocates. Of course, these are mock negotiations without real clients and real money on the line. As a result, these competitions are an effective place to learn and practice advocacy skills before finding yourself in a real negotiation or, in my case, a real trial. It’s still early in the school year – seek out these opportunities to practice.

Not yet convinced? Think these extra-curricular competitions will eat up too much of your time during 3LOL? I’ve prepared some closing submissions on the matter.

The fact that I had participated in negotiation competitions helped me calm my pre-appearance nerves. I was able to remind myself that I had been in situations before where talented professionals were judging my performance.

My negotiation competition experience also allowed me to practice my public speaking skills. I knew that I would be able to express myself clearly and confidently in front of my client, the opposition, and the deputy judge.

Further, these competitions taught me to think on my feet. Particularly during my cross-examinations of defence witnesses and during my closing arguments, I was required to listen carefully and react to answers from witnesses and to questions from the bench. I was glad to have practiced these skills previously.

Although I happened to practice advocacy skills in the context of negotiation competitions, you can acquire and practise these skills in a variety of settings. For instance, many of my fellow articling students participated in moot court competitions and will attest to the fact that they benefitted greatly from the opportunity to practice appellate advocacy, public speaking, and other skills in moot court. Many of us also took trial advocacy to prepare for our summer and articling terms at McCague Borlack.

Make the most of your law school experience – seek out opportunities to practice advocacy skills before you begin articling; I’m very glad that I did.

Emily K.

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.

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.

Shayan K