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Effective Pre-trial conferences. Justice Robert Beaudoin November 16 th , 2012. Pre-trials. Most disputes are solved as a result of the negotiation process. Our rules prepare every case for an event that will most likely not happen.
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Effective Pre-trial conferences Justice Robert Beaudoin November 16th, 2012
Pre-trials • Most disputes are solved as a result of the negotiation process. • Our rules prepare every case for an event that will most likely not happen. • A pre-trial is one more tool designed to enhance the negotiation process.
Who is your client? • Talking to an empty chair. (Rule 50.05) • Authority to settle. • So, you’re a government lawyer; don’t feed the stereotype.
Rule Amendments • Read Rule 50, 53 and 20.5 as well. • Schizophrenic rule. • Know what you are preparing for. • Communicate with the other side. • Communicate with the court. • Find out how much time you have.
Another myth • FACT suit vs. LAW suit. • Different approaches to settlement.
Who is on first? • Try to find out the pre-trial judge’s style in advance. • Prepare to answer questions.
Size matters • Edit, Edit, Edit. • Use demonstrative tools. • Charts, diagrams, videos. • Glossary of terms • Electronic format with hyperlinks?
Organize • Start with an overview. Do not simply repeat the allegations in the statement of claim. Think of the brief as an opening address to a jury. • Know your cause(s) of action and state the law that applies. • Understand the remedy you are seeking. • Identify the chain of facts that you must prove and refer to the evidence that you have that will support each finding of fact. Analysis not argument. • When identifying evidence, consider documents and reports, discovery evidence and “will say” statements of others.
Organize • Summarize the damages in a clear and concise way. Set them out under separate headings. • Simplify the math or perform the necessary calculations. • If you organize the material properly, the pre-trial judge will come to the correct conclusion. Leave the arguing for the trial. • Unless it is a lawsuit, case law is rarely important. If you are referring to other cases for an assessment of damages, you can do so without reprinting the entire case.
Expert Reports • To be served prior to the pre-trial conference. • An expert’s report is only as good as the assumptions and the material upon which it is based. Make sure that those assumptions are well supported by the evidence. • Some expert reports are quite complicated or may contain a great deal of detail. Please consider a summary.
Don’t fade away • Many pre-trial conference briefs start out strong but fade towards the end; usually when the pre-trial judge is getting to the critical part. The tell-tale sign is when damage numbers are plugged in without any sort of analysis. The best way to ensure against that is to write the conclusion first.
Offers to settle • These must be realistic and these should represent your client’s offer of compromise and not your prediction of the best possible outcome if the matter proceeds to trial. • What is the process of approval for any settlement.
Rule 20.05 • The pre-trial judge or master can make any order that is available under Rule 20.05 (1) or (2). • Come prepared to address these issues and pay particular attention to 20.05(2)(k) (meeting of the experts). • Get any other orders you might need.
