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First trial tips?

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I am an articling student who will be taking the lead on a small claims court trial early next week (Ontario). This is my first time leading a trial. Though I feel fairly prepared, I'm wondering if anyone has any practical tips for things to do or to avoid, and for how to make this go as smoothly as possible?

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The very best way to prepare for a trial is to draft your closing submissions. You will lay out every single detail you want the court to consider. You will point out why they shouldn’t go with the other guy’s submissions. You will refer to the law and why it’s on your side. You will fairly cite the relevant cases and distinguish the ones not in your favour. Give your closing out loud to your cat or your mirror or your friend or your mom. Enjoy the delivery - this is the high point, the bit we all love.

Once you have your closing, if you’ve done it right, you’re looking a beautiful wall of logic and persuasion. 

...Now go BACK to your trial prep,and make sure you have figured out how to get every single brick in that wall. 

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While I only practice law PT, I like small claims work including when it goes to trial so I'm a bit more active in this area (but still, don't rely on anything I write! :rolleyes:) And many years ago, I did a small claims trial while articling and so have fond memories (other side represented by a lawyer, and we agreed on joint submissions re expert evidence, and my client won).

1. Related to what @Hegdis said and maybe unpacking it a bit (but correct me if I've misinterpreted what you said). I consider the things that need to be proven/for there to be evidence of (I'm thinking right now from plaintiff perspective, a bit different but related for defendant). So like him, I'm thinking of my closing and what pieces I need to assemble. And make a brief checklist for each witness, whether examining direct or cross-examining, what information I want to elicit. And as I examine them, I check off when each point has been dealt with adequately. Now, sometimes if you get a great answer (for your client) on cross-examination, you might want to leave it there and not bother with some items that would be nice, but not necessary, but that's a very specific judgment call.

2. Make sure you and your client know exactly where to go, be there early, and be prepared that if something happens and e.g. you're the second trial on the list and the first one goes long, you may be coming back another day.

3. While I hate to push the book given some of what Zuker has been criticized for, Ontario Small Claims Court Practice is good to have with you. If your firm doesn't have a copy, at least have a hardcopy of the small claims rules with you, just in case.

4. TURN OFF YOUR PHONE IN COURT. The judge will also probably warn everyone. Even if it's on vibrate, you don't want to be distracted in the middle of cross-exam. And during brief breaks you should be keeping your mind on the case. Have an automated out-of-office-in-court-get-back-to-you-tomorrow-call-reception-if-urgent message. At lunch you can turn it on and check, but better to promise next-day response just in case.

5. If there's a break during examination of one of your witnesses, you may have ethical restrictions on speaking to them. Figure this out, and warn your client/witnesses in advance. Or get permission to talk to them, specify it will be non-case related, but better to not speak to them at all.

6. Have multiple copies (enough for court, you, witness, opposing counsel/student/party) of all documents (including cases cited) that will be used (and your checklist will indicate if a particular witness is being used to admit a particular document). Ideally, if the other side is represented, you'll have come to an agreement ahead of time about e.g. there's a group of documents you both agree are authentic etc. and you can inform the judge. Even with a self-rep I've come to agreements that e.g. copies of emails were all true copies and admissible etc. though they didn't agree on a joint exhibit book. And, while I care about wasting paper, having multiple copies, organized, means that more than once I've been in the situation where opposing party (usually a self-rep) is fumbling trying to find the document, and after a brief pause (so not looking like I'm interrupting), I'd stand up and offer to provide a copy. The judge definitely appreciated me helping things keeping moving along, and it also gave them a positive impression of me and my client and negative of the other.

7. If there have been settlement offers, have evidence of them with you. The last time I was at small claims trial we were able to briefly deal with costs (I had previously discussed and obtained instructions from my client as to what I'd do) at the end, I produced affidavits authenticating the offers, the other party agreed they'd received them, I asked the judge in the interests of efficiency to just set appropriate costs for such a matter bearing in mind the settlement offers, and my client despite losing the case was very happy, because of the doubled costs award (beating the offer) and the judge's estimate of the costs being generous to begin with. Depending upon the amount in question and complexity, this might not always be the appropriate procedure?

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1 hour ago, ghoulzrulez said:

I am an articling student who will be taking the lead on a small claims court trial early next week (Ontario). This is my first time leading a trial. Though I feel fairly prepared, I'm wondering if anyone has any practical tips for things to do or to avoid, and for how to make this go as smoothly as possible?

Rule #1 of Small Claims Court is that there are no rules:

Court May Dispense With Compliance

2.02 If necessary in the interest of justice, the court may dispense with compliance with any rule at any time.  O. Reg. 258/98, r. 2.02.

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I've done a couple small claims trials, and IMHO, the most important thing to remember is that you cannot expect the court to give a shit about the rules of civil procedure or evidence.

The Plaintiff isn't calling her treating doctors to testify and wants to just enter their records without you getting a chance to cross-examine them? Boom plaintiff wins! If you want to cross-examine someone, you have to put them under summons, regardless of the fact that it's the plaintiff's burden to prove his or her case.

Other than that, I'd give the same advice that everyone else gave. Figure out what your theory of the case is, figure out what submissions you want to make, parse out what evidence you'll need to have in support of those submissions, and then draft your questions to elicit that evidence.

Edited by beyondsection17
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21 hours ago, utmguy said:

Rule #1 of Small Claims Court is that there are no rules:

Court May Dispense With Compliance

2.02 If necessary in the interest of justice, the court may dispense with compliance with any rule at any time.  O. Reg. 258/98, r. 2.02.

1 hour ago, beyondsection17 said:

I've done a couple small claims trials, and IMHO, the most important thing to remember is that you cannot expect the court to give a shit about the rules of civil procedure or evidence.

I think these responses illustrate what I'm most worried about - the uncertainty of the whole thing. 

Given that it's my first time leading a trial, I'm trying to overprepare - anticipate who I'll be introducing evidence through, when I'll be introducing evidence, all the important points I need to hit. I'm worried that the judge will come out and say "No need for 'x'" and I'll be completely thrown off and miss something. 

Thanks for all the advice!

 

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34 minutes ago, ghoulzrulez said:

I think these responses illustrate what I'm most worried about - the uncertainty of the whole thing. 

Given that it's my first time leading a trial, I'm trying to overprepare - anticipate who I'll be introducing evidence through, when I'll be introducing evidence, all the important points I need to hit. I'm worried that the judge will come out and say "No need for 'x'" and I'll be completely thrown off and miss something. 

Thanks for all the advice!

 

The other side of this pancake is that you shouldn't feel too upset regardless of what happens. Small Claims is basically kangaroo court; you can prepare, and you can be right at law, and you can still lose. It's not (necessarily) a reflection on you, and more a reflection on the nature of the fact scenario and small claims in general.

The other good advice I got when I was articling is to run the trial as though you're preparing for an inevitable appeal. Get the evidence you need in, make sure your position is correct in law, and that way, if you get a wacky deputy judge who doesn't follow the law, you're all set to appeal (if that's what your client wants to do).

Edited by beyondsection17
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1 hour ago, ghoulzrulez said:

I think these responses illustrate what I'm most worried about - the uncertainty of the whole thing. 

Given that it's my first time leading a trial, I'm trying to overprepare - anticipate who I'll be introducing evidence through, when I'll be introducing evidence, all the important points I need to hit. I'm worried that the judge will come out and say "No need for 'x'" and I'll be completely thrown off and miss something. 

Thanks for all the advice!

 

The way to avoid that is not to lose sight of your end goal at any point. If the judge doesn’t need something, what’s your next point that you have to prove? If the judge is accepting the item was damaged and doesn’t need 50 photos of the damages, but the isssue is who damaged it, then move on to who, because your end goal is to prove that Party B damaged it and should pay. Or you can ask the judge what they would like to hear from you on. 

edit: also, this may be a lot to ask in a first trial, but generally, you should rarely have a judge say "no need for x" (unless they come out and say it right off the bat) because you should be reading them, see they are impatient/convinced/whatever and say "I see Your Honour doesn't need to hear from me further on the damage. Would you like me to move on to causation?"

Edited by providence
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1 hour ago, providence said:

The way to avoid that is not to lose sight of your end goal at any point. If the judge doesn’t need something, what’s your next point that you have to prove? If the judge is accepting the item was damaged and doesn’t need 50 photos of the damages, but the isssue is who damaged it, then move on to who, because your end goal is to prove that Party B damaged it and should pay. Or you can ask the judge what they would like to hear from you on. 

edit: also, this may be a lot to ask in a first trial, but generally, you should rarely have a judge say "no need for x" (unless they come out and say it right off the bat) because you should be reading them, see they are impatient/convinced/whatever and say "I see Your Honour doesn't need to hear from me further on the damage. Would you like me to move on to causation?"

[emphasis added]

I get what you mean and generally agree (and you're far more experienced trial litigator at least currently and criminally - referring to the nature of the proceedings, not your behaviour) but I think sometimes in cross-examination, one may need to deal with a point until the judge acknowledges they've gotten it, to make sure the point has come across?

Also re @beyondsection17 and @ghoulzrulez I get your points, but at the same time, shouldn't the court expect better from an articling student or lawyer or paralegal than the typical self-rep? If you're prepared and organized and polite and not causing delays and not arrogant, isn't that all good and helpful (both to your client and the administration of justice)?

That said, and I'm altering and simplifying this, if a debt for work done is owed, plaintiff or defendant, I make sure my client knows that the courts really favour settlement and compromise and are inclined to split the baby. And to bear that in mind in settlement offers etc. and the anticipated result if it goes to trial.

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Although I haven’t even started law school yet, I’ve been in small claims court several times over the years as a self representative or representing my spouse’s own company or my employer, and I think it’s important to mention that every judge has been very impatient. They just want the most important information and they want it in 5 minutes or less (I’m exaggerating but not really).   I’ve always won my cases and although I wouldn’t have let it go so far unless I knew I had the best case, I think it definitely helped that I could skip to the important details on the fly and the other party couldn’t sort out their important details fast enough for the judge. 

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Just now, epeeist said:

[emphasis added]

I get what you mean and generally agree (and you're far more experienced trial litigator at least currently and criminally - referring to the nature of the proceedings, not your behaviour) but I think sometimes in cross-examination, one may need to deal with a point until the judge acknowledges they've gotten it, to make sure the point has come across?

 

Of course. Again, if you are watching the judge and paying attention to their reactions and questions, you should know when they need more and haven’t gotten something yet and when they either have it or it’s a lost cause and you should move on to another area where you may have a better shot. 

 

 

 

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29 minutes ago, epeeist said:

Also re @beyondsection17 and @ghoulzrulez I get your points, but at the same time, shouldn't the court expect better from an articling student or lawyer or paralegal than the typical self-rep? If you're prepared and organized and polite and not causing delays and not arrogant, isn't that all good and helpful (both to your client and the administration of justice)?

I'm not saying that you shouldn't be prepared and organized and polite, or that you should cause delays and be arrogant. I don't think I've ever said that. What I did say is that you shouldn't expect to lean on the Rules or use them to your advantage, and likewise, you shouldn't anticipate that your opponent will be expected to follow the Rules, or that they will be admonished for not following the Rules, regardless of whether they have counsel.

Edited by beyondsection17

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2 minutes ago, beyondsection17 said:

I'm not saying that you shouldn't be prepared and organized and polite, or that you should cause delays and be arrogant. I don't think I've ever said that. What I did say is that you shouldn't expect to lean on the Rules or use them to your advantage, and you shouldn't anticipate that your opponent will be expected to follow the Rules or will be admonished for not following the Rules either. 

Yeah, I know you didn't mean it that way, let me try putting it differently that I think gets at what you were saying:

Expect the court (especially if other side is a self-rep) to be indulgent, not limit them to the rules, give them leeway, etc. But don't expect the same for yourself as an articling student (or lawyer, or paralegal).

And, I was thinking of my last trial, while waiting for it to be called watching the motions, and seeing a paralegal who was clear, concise, prepared, and contrasting her presentation with a lawyer who had more of a lackadaisical attitude (or let's say slackadaisacal, because I like that portmanteau). Even though he got relief, I have to think that over time, some percentage of motions (or if he behaves that way at trial, trials) will have worse results because of his failure to treat the court seriously.

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I did one about a month in articling it was great here are something that I did and I tell others who ask this question.

1. Be prepared, obviously that goes without saying but focus and have everything laid out ready for you ill have specifics below.

2.  Have questions ready for all the witnesses, have the questions typed up and anticipate follow up questions you will have.  You should know most of the answers that will be given by all of the witnesses but be prepared for curve balls.

3. Draft a factum style memo for yourself as part of your submissions.  Have all the law summarized, have the application of your facts to the law.

4. Have your evidence in a ready format to give to the court.  If you have multiple pictures double check that you have enough copies for the judge, the opposing party, the witness on the stand and you.  This goes for quotes, agreements of purchase and sale etc... make sure you have 4 copies and have them already neatly set up in the order you anticipate submitting them.  The evidence should have been disclosed prior to trial but some people lose them.

5. Meet with your clients before and brief them on what to expect and how the day will unfold. For instance I always tell my clients if they dont know the answer to say they dont know the answer.  Its a bad look to try and speculate or guess etc... 

6. Have all the offers to settle ready and submissions for costs ready in case it gets to that point.  Some Judges dont take submissions for costs, some take them in court and some in writing.  Make sure you have a number you are requesting and why.  Make copies of the offers to settle (if any) for this stage and adjust accordingly.

7.  Have a brief opening statement in case the judge gives you the opportunity, some do and some dont.

8.  If there is objectionable evidence in the other parties case make sure you are prepared for the objection.  Ive had a trial where I knew the Plaintiff was going to attempt to disclose a letter but I was prepared with my objection and it didnt get in.  The rules are looser in small claims court but there are still rules.

9. Have the rules of civil procedure, and the small claims court rules and an evidence textbook or something of that nature with you in case.  It might not matter as there is less rules here but being prepared for any objections is good.

10.  Be early with your client, this ties into 5.  There is still resolution discussion going on in the date of trial and Ive had one judge insist on a pre-trail instead of a trial.

11.  If the judge is wrong, or allows something that they shouldnt have or deny something on your end.  Dont interrupt, dont argue just move on.

12.  If the judge tells you to stop or that they have seen enough then that is a hint.  Ive had a judge ask me if I wanted to call any evidence.  The Plaintiff had presented their case and had been destroyed in cross.  I told my client this means we are successful and the only way we could lose is if he says something terrible.  He took the stand and I asked 5 questions and that was it we were successful.   So if a judge says I dont need submissions, or no need to file more pictures then take the advice and move one.

13.  This comes with experience but sometimes the opposing parties witness might say something really bad to their case.  You might get a smoking gun type of answer, I usually stop with that witness or change the topic.  You never want to give them a chance to back pedal or try to fix their mistake.  Eepeist touched on this.  

Those are just some rambling thoughts I had.

 

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You should either know the answer you’re going to get, or there is no possible answer that can hurt you. NEVER ask a question when you don’t know what the answer will be. 

Edit: or you have a firm answer you like in a statement or other source so you can impeach them if they contradict themself 

Edited by providence

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When you're in the wild west of small claims court or something like labour arbitration, you sometimes have no choice but to ask a question where you honestly have no clue what the answer will be. Just be smart about whether you follow up, depending on what the answer is.

My best suggestion is to draft the closing statement you want to make when you're done. Then identify every single fact in that closing statement, and put them in a list. For every one, identify the person who will say it, and if there's a document they should refer to. Sort that list by person, and you have your examination plan for every witness. Obviously there's more to it than that, but that's the heart of it. Be ruthless about what you need to prove to win your case, and how you're going to prove it. Anything more is irrelevant at best and irritating to the judge at worst.

 

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Yeah, sometimes when you're in the wild world of provincial court trials, with a reluctant witness who has never given a statement, I'm forced to ask questions I don't know the answer to.  But be aware that you're doing it, know that it can blow up on you, and be prepared to live with it.

For all the bad mouthing small claims court can get, I did find that if you came in with a serious case and representation on both sides the court just loved you for it.  On two separate occasions I ran 2 day trials, complete with experts.  I think it was just so different than what they usually see the court just took everything very seriously.

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1 hour ago, Jaggers said:

When you're in the wild west of small claims court or something like labour arbitration, you sometimes have no choice but to ask a question where you honestly have no clue what the answer will be. Just be smart about whether you follow up, depending on what the answer is.

My best suggestion is to draft the closing statement you want to make when you're done. Then identify every single fact in that closing statement, and put them in a list. For every one, identify the person who will say it, and if there's a document they should refer to. Sort that list by person, and you have your examination plan for every witness. Obviously there's more to it than that, but that's the heart of it. Be ruthless about what you need to prove to win your case, and how you're going to prove it. Anything more is irrelevant at best and irritating to the judge at worst.

 

That is definitely what I do - draft my closing first, with all the law, and all the evidence I anticipate getting or that I have, and then craft my crosses and direct if applicable to adduce that evidence.

54 minutes ago, Malicious Prosecutor said:

Yeah, sometimes when you're in the wild world of provincial court trials, with a reluctant witness who has never given a statement, I'm forced to ask questions I don't know the answer to.  But be aware that you're doing it, know that it can blow up on you, and be prepared to live with it.

For all the bad mouthing small claims court can get, I did find that if you came in with a serious case and representation on both sides the court just loved you for it.  On two separate occasions I ran 2 day trials, complete with experts.  I think it was just so different than what they usually see the court just took everything very seriously.

I have never done small claims court, but even in a crazy provincial court trial, I will never ask an open-ended question where I am not confident what the response will be, or where I know it will not hurt me whatever it is. I think this is different for the Crown than for defence because yes, the Crown may have reluctant witnesses with no statement. Any witness I call, I have vetted, and when I am crossing Crown witnesses, even if there was no statement, I've had the benefit of their direct. And maybe I'm about to ambush the Crown with their texts or something. I would never be flying completely blind for  a cross. The less I know, the tighter and more leading my questions are. I don't know how this translates to small claims. 

I will add that sometimes the best cross is no cross. If a reluctant witness completely hung themself on direct, a dramatic "I have no questions for this witness, Your Honour" is very effective. Don't give them a chance to rehabilitate themself because you feel you have to cross, or you want to make hay and indulge yourself over all the stupid things they said in direct. Likewise, if they start hanging themself on cross, you might not have to finish every single question on your sheet because you have enough, and knowing when to quit and sit down is an important skill that will impress the judge. 

 

 

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5 hours ago, providence said:

I will add that sometimes the best cross is no cross. If a reluctant witness completely hung themself on direct, a dramatic "I have no questions for this witness, Your Honour" is very effective. Don't give them a chance to rehabilitate themself because you feel you have to cross, or you want to make hay and indulge yourself over all the stupid things they said in direct. Likewise, if they start hanging themself on cross, you might not have to finish every single question on your sheet because you have enough, and knowing when to quit and sit down is an important skill that will impress the judge. 

I still think one of my finest pieces of lawyering was when I was one of 5 co-accuseds on multiple assault charges.  I was most junior, so I crossed last.  But I thought it was comical - each defence lawyer would get up with each witness and go through the same evidence, asking basically the same questions.  It was if they had to justify their pay on the file.

Me?  I realized each witness in turn hadn't said anything about my client doing anything.  So for each witness I simply stood up and said "no questions".  And while it ended with a plea deal after lunch time for some, my client walked away with an acquittal.

Or another war story... I was running a homicide prelim.  For the first time I had a junior lawyer assisting.  I had my junior examining the Accused's mom.  It turned tough - we had to 9(2) the mom.  My junior player the mom's statement to police - mom tearfully admitted that what she said to the police was true - and I was quite proud when my junior sat down with no further questions.  We got what we came for, we could only hurt ourselves by going further (plus I wouldn't want to put mom through any more than we had to).

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