Trial Preparation: Some Ways to Avoid a Claim
After several weeks of waiting, you finally receive the long awaited judgment! It partially allows your client’s originating application. You are satisfied and email the judgment to your client, asking them to call you back when they have read it.
Instead, you receive a long email from the client. They say they are disappointed with the amounts obtained. They believe this poor outcome is the result of your lack of confidence during the oral argument. They also claim you failed to present evidence favourable to their position in order to get more money.
Too often, we see similar criticisms at the Insurance Fund. In many cases, the cause of these complaints lies in the failure to adequately prepare the client for trial. Make no mistake, this is not just about preparing the client’s testimony. Other factors also deserve your attention. Here are some suggestions to limit the risk of being the subject of a malpractice claim or lawsuit in connection with trial preparation.
1. Preliminary Preparation
A trial is undoubtedly a stressful event for a client. Avoid adding to this stress by telling the client the day before the trial that there is something harmful to their case, or worse, drastically changing your opinion. Doing so is likely to erode the bond of trust between you and your client.
Also, throughout the file, keep the client informed in writing of developments and their impact on the chances of success of the case (both the good and the bad).
This transparent and regular communication will foster better acceptance by the client of your recommendations during the preparation of the trial.
2. Lawyer Preparation
One of the important milestones in the preparation of the trial is trial readiness. Make sure you have an exemplary command of the theory of the case. Ask yourself the following questions:
• What exhibits must be filed?
• Is it appropriate to file the expert report?
• Do the stenographer’s notes need to be filed? If so, should they be filed in their entirety or just excerpts?
• Who will be your witnesses?
Don’t forget to send the client a copy of these documents as well as the Joint Declaration That a File is Complete for comments and instructions before they are filed in court. The goal is to ensure that the client is comfortable with the evidence you will present in court.
3. Client Preparation
There are four (4) aspects to preparing the client for trial: explaining the trial process, discussing the risks and costs of the trial, reviewing the evidence and managing emotions.
i) Explaining the Trial Process
Generally speaking, the trial is the client’s first experience with a courtroom. It is therefore only natural that they should be nervous as the trial approaches. Consequently, some topics should be addressed in order to limit the client’s stress:
• Explain the decorum in a courtroom: For example, discuss how to dress appropriately or how to address the judge and the other parties’ lawyers. Another element to be mentioned is the requirement to stand in deference to the judge’s entry and exit from the courtroom. If the hearing will be virtual or semi-virtual, explain the decorum that must be observed.
• Remind the client of the expected length of the trial: Confirm the expected length of the trial and make the client aware of the fact that the work required during a given day may extend beyond the hearing. For example, at the end of the day, you may need the client to provide details following the testimony of the adverse party.
• Provide the client with the expected schedule for each day of the trial: This schedule should include the identity of witnesses and the order in which they will testify.
• Explain the concept of witness exclusion: Make sure the client understands that witnesses cannot talk to each other about their testimony if there is a witness exclusion order.
• Explain the order of presentation of the evidence: In other words, the trial begins with the plaintiff’s evidence, followed by the defendant’s evidence and possible rebuttal evidence in some cases.
• Caution the client against jumping to conclusions: For example, just because a person testifies well on the examination-in-chief does not mean they will perform well on cross-examination. Similarly, a frown from the judge does not mean the case is lost.
• With regard to the client’s testimony, specify that you will not be able to give them advice during their testimony or during a break.
• Finally, specify your availability during the trial: During breaks, do you prefer to refine certain arguments? Are you comfortable with the client slipping you little notes or questions during the hearing?
ii) Discussing the Risks and Costs of the Trial
It’s not always easy to discuss the negative aspects of the case or the financial issues with the client. However, these discussions play a key role in managing client expectations. They also allow the client to make an informed decision as to whether to go to trial. The decision is, after all, the client’s to make!
• Prepare scenarios of various possible trial outcomes and review them with the client: This is about evaluating the possible outcomes of a trial (positive and negative). In addition, for each scenario determine the likelihood of it occurring.
• Discuss the financial implications of the trial: This entails providing a detailed budget of the underlying costs of the trial (your fees, expert’s fees, costs for summoning witnesses, etc.).
It also entails providing your assessment of the real value of the damages claimed, taking care to advise the client, if they are the plaintiff and win the case, that the amount obtained may differ from the amount claimed. That said, your assessment should not stop there!
If your client is the plaintiff, specify how much money will be left in the client’s pocket if the lawsuit is successful, after payment of the costs of the litigation. If your client is the defendant, check with your client to see if they have the financial means to pay the amounts they may be ordered to pay.
Moreover, don’t forget to address the issue of legal costs and the possibility that extrajudicial fees may be awarded.
• Determine whether the client is open to settling out of court: In light of the various scenarios and costs associated with the trial, sound out your client on the possibility of settling the case out of court. Similarly, if an offer was previously made in the file, check with the client to see if they are willing to reconsider it. Sometimes winning a case is not the same as getting a judgment fully in one’s favour. The client may come out a loser if the amount obtained as a result of the judgment is less than what was claimed and/or what it cost to go to trial.
• Document your file regarding your advice and recommendations to the client: Put your advice and recommendations on whether to go to trial or settle in writing. Also specify the reasons for the advice or recommendations. In addition, set out in writing any advice or recommendations that the client has chosen to ignore. If you recommend settling the case and the client still wants to proceed, have them sign a letter acknowledging that you explained the situation and that despite your recommendations, they still want to proceed.
• Be sure to get written instructions from your client: These instructions may pertain to settlement offers and counter-offers as well as to the decision to go to trial. In addition, if you are representing more than one person in a case, be sure to get instructions from each person.
iii) Reviewing the Evidence
• Review the theory of the case: If your client is the plaintiff, explain the burden of proof. If your client is the defendant, review the arguments that can be raised against the plaintiff. Discuss the strengths and weaknesses of the case. For the weak points, determine with the client if they have additional arguments to be raised.
• Review with the client all versions of the facts given during the proceedings: Review the stenographer’s notes of the client’s examination or the client’s affidavits to confirm that there are no contradictions. Moreover, determine whether there are any elements of the client’s out-of-court testimony that need to be clarified or corrected.
• In the same vein, carefully prepare the client’s testimony: As part of this preparation, you could take the client to a courtroom a few days before the trial to show them where they will be sitting when testifying. Some lawyers also do a mock examination-in-chief and cross-examination with the client. Others provide the client with a summary of the client’s testimony. In the latter case, care must be taken not to steer the client’s testimony. Moreover, in order to avoid damaging their credibility, the client should avoid memorizing their testimony. They must not bring it with them when they testify.
• Examine all the exhibits in the file: Review all of the documents that have been filed into evidence by each of the parties. Pay particular attention to exhibits that negatively impact your client’s case. Check with the client to see if they have any additional comments regarding these exhibits.
iv) Managing Emotions
Management of the client’s emotions is a regularly underestimated aspect of trial preparation. However, overly strong emotions can have a negative impact on the outcome of the trial.
• Discuss the emotions that may arise during the trial: Inform the client that it is normal to experience some stress or negative emotions during the trial.
• Discuss whether it would be a good idea for the client to have someone accompany them: For highly emotional clients, it may be appropriate for them to be accompanied during the trial by someone they trust. This person will be able to provide the necessary support to the client during breaks.
The trial is the culmination of long hours of work for both the lawyer and the client. By applying the foregoing suggestions, you will limit the risk of being criticized for your trial preparation, regardless of the judgment obtained.
Diane Devlin Welsh, “PREPARE YOUR CLIENT FOR TRIAL: If you haven’t helped them with their homework, you can lose”, (1990) 12:4 Family Advocate 40.
LAWPRO, “Client Trial Preparation Checklist”, in practicePRO, 2016, online: https://www.practicepro.ca/practice-aids/checklists/client-trial-preparation-checklist/.
LAWPRO, “Client Trial Prep Checklist”, in practicePRO, 2016, online: https://www.practicepro.ca/wp-content/uploads/2017/06/Client-Trial-Preparation-Checklist.pdf.