Trial readiness the best tool for pre-trial success
Executing a successful pre-trial requires a balance of preparation, timing and skill, but the most important is a lawyer’s resolve to actually go to trial.
Tim Boland, one of BolandHowe’s founding partners discussed this issue when he spoke to the Ontario Trial Lawyers Association’s New Lawyers Division during an OTLA conference targeting young lawyers. He delivered his presentation based on a paper he co-authored with another one of the firm’s lawyers Darcy Romaine on strategies related to pre-trials.
The buildup to a pre-trial, Boland writes in the paper, sees parties armed with witnesses, surveillance, research and resources. Whether there will be a settlement, he says, largely depends on the viability of the trial threat — i.e. the evidence, the magnitude of the claim, and the credibility of the plaintiff — along with each lawyer’s resolve.
“Resolve is based on your assessment of whether or not you believe the other lawyer will go to trial to defend the position they advance,” writes Boland.
“Your assessment will turn on your awareness of your opponent’s reputation for regularly taking cases to trial and the results of those trials; how anxious your opponent appears at the pre-trial; how well your opponent projects confidence, competence, conviction, and preparedness through every available means: verbal, non-verbal, written, etc. Interviewing witnesses before the pre-trial, serving expert notices, Requests to Admit, Adverse Party notices etc., will send strong messages of trial readiness.”
While settlement is often the preferred manner of resolution, trial is not to be avoided at all costs.
“Sometimes the benefits do outweigh the costs,” he says. “Sometimes splitting the difference between two bargaining positions isn’t justice. Sometimes there are larger principles at stake. Sometimes a compromise is as bad as a loss, and sometimes the other side is just plain wrong.”
Counsel must also be aware of “the feint,” says Boland, since it may not always be advantageous to showcase true resolve and the total viability of a case as it may only prompt the other side to increase their offer slightly and warn their client to prepare for trial.
“Your job is to assess the other lawyer’s resolve correctly and, depending on the circumstances, determine whether it is best for you to project readiness or not,” writes Boland, noting a feint only works if a lawyer already has a reputation for regularly going to trial.
“In game theory, if you always bluff, it’s no longer a bluff, it’s a tell,” he adds.
Fear of going to trial is a real concern, especially with young lawyers, writes Boland, and the ability to ask for help is crucial.
“Resilience, resolve, and grit don’t just happen: they’re cultivated,” he says.
“You have to do as many trials as you can. You have to take losses. They hurt, deeply, but they’re necessary,” he says. “The trick is to incrementally tackle challenges so your client is always well represented and so that your own feelings don’t compromise your effectiveness. Get into small claims court. Get into traffic court. Get into CPP and ODSP hearings. Your skill and confidence will grow over time and so will your resolve.”
When it comes to scheduling the pre-trial, timing is a strategic decision, says Boland: “The further away it is from trial, the more it will be used by both sides as a reconnaissance mission; the closer it is to trial the more likely it is to focus on resolution.”
Another critical component to the pre-trial puzzle is the pre-trial memorandum, writes Boland.
“Up until the pre-trial memorandum, the adjuster has only received reporting letters from his defence lawyer. The pre-trial memo is a rare opportunity to circumvent the defence lawyer and speak directly to the adjuster/claims manager, the decision makers,” he says.
“This is the document that will be debated at the committees when reserves are re-set. So get your pre-trial memo out as early as you can. You don’t want the attending adjuster and defence lawyer at the pre-trial without sufficient authority to settle.”
The pre-trial memo is also critical because the judge reads it, he adds.
A powerful pre-trial memo requires strong, direct, compelling writing illustrated by photographs, charts and graphs where necessary, says Boland. A proper, polished layout is also crucial, along with impeccable spelling and grammar.
Managing client expectations is another key element of the process, says Boland.
“You don’t want to be going to a pre-trial conference without being in agreement with a fully informed client,” he says. “A pre-trial is a stressful event for your client. Part of your ability to have true resolve is a client who is right there with you. You cannot achieve that if your client is learning the weaknesses of the case and cost consequences in the hallway on the day of the pre-trial.”
Prudent preparation also includes finding out who the pre-trial judge is in advance to get a sense of how it will proceed, as each judge prefers different formats, says Boland.
Pre-trial models include formal, where the pre-trial is conducted in open court, in the presence of the parties; mediated, where in chambers, the judge caucuses with the sides separately after an initial meet and greet; and a discussion format, which is similar to the formal model, but is held in chambers and clients are not invited.
When at the pre-trial, Boland advises counsel to remain polite, professional and respectful.
“Nothing demonstrates inexperience so much as a lawyer who keeps interrupting,” he says.
While there are endless tips to pass along in terms of preparing and executing a pre-trial, says Boland, none are more important than a lawyer’s ability to demonstrate his or her willingness to go to trial.
“Your ability to settle your client’s case for the highest amount without going to trial can only be achieved if the opposing lawyer believes that you will go to trial,” writes Boland. “To do that, you need a reputation for going to trial.”
Ultimately, he says, the result a client will receive will turn on a lawyer’s resolve.
“A career of avoiding trial will catch up with you. Once you develop a reputation of being afraid to lose, your ability to effectively negotiate on behalf of your client is lost,” says Boland. “However, it’s never too late to establish your resolve by taking a stand and fighting for cases that need to be fought, win or lose.”
*This article was originally featured at www.advocatedaily.com