Anatomy of a Trial

  • August 29, 2018
  • Christopher Martyr

"When you are cross-examining an expert witness, you are never going to be able to outsmart them in their own field." This is a key bit of insight Jocelyn Tatebe, of Dutton Brock LLP, took away from Anatomy of a Trial, a two-day program featuring presentations, demonstrations and interactive dialogue pertaining to all aspects of the trial process, hosted by the OBA’s Insurance Law Section on May 10 and 11.

The advice from instructors, according to Tatebe? “Pay close attention to the documents (or lack thereof) that their opinion was based on and try to inquire if a question they were asked to opine on was beyond the scope of their expertise or one that they would defer to another specialist.” Don’t try to beat them at their own game.

This approach – one that Tatebe was able to put to good use in a Licence Appeal Tribunal hearing she conducted just weeks after the program – is one of many strategies shared by the program’s impressive faculty that included no less than eight judges. The mock trial scenario also featured a deep roster of some of the most senior and prolific litigators practising in the area of personal injury and insurance law, who came together to demonstrate jury trial processes and best practices for litigators who have been primarily involved in cases that settled out of court or were otherwise in need of a refresher.

The proceedings began with opening remarks followed by a discussion and comments about the documents needed to prepare a trial and how to start a trial. Samples attendees received included a List of Exhibits, Jury Questions, Witness List and Schedule, Aide Memoire Index, Motion for More than 3 Experts, Statement of Law, Notice of Intention, Request to Admit, Offer to Settle and more.

A live presentation of opening statements from defence and plaintiff’s counsel underscored the purpose, parameters and persuasive nature of this type of address.

Participants conducted examinations and cross-examinations of lay witnesses and experts – once again followed by comments from the judicial faculty – that brought the skill-set required for effective interview into sharp focus, making it one of the most valuable components for many in attendance, including Tatebe and Scott McMahon, of O’Flynn Weese LLP.

McMahon’s favourite part was “hearing from top-notch defence and plaintiff lawyers that you are not really doing the ‘wrong’ thing in focusing your cross-examination of an expert on the factual underpinnings of the report as opposed to the subject matter and expertise of the expert,” because, as he notes, “you will most likely never win that battle.”

The event concluded with closing arguments from plaintiff and defence counsel followed by a decision from the jury and a post-verdict discussion that provided helpful tips and pragmatic solutions for dealing with many common issues that arise following a trial.

The program was not without a special accident benefit component, as senior counsel provided practical trial tips that would be useful at the Licence Appeal Tribunal.

Takeaways were not confined to the wisdom shared over the course of the comprehensive proceedings. The more than 100 attendees received a vast array of written materials that included articles on how to prepare and conduct a trial as well as actual written opening and closing statements and sample questions to be asked as part of the examination process.

The care, time, consideration and expertise the faculty and program chairs Audrey Ramsay, Philippa Samworth, Brian Bangay and John McLeish contributed to the event were on full display throughout the well-received event, that  took years to plan.  There is no doubt that the advice provided will resonate in courtrooms in the months to come as attendees put their newly acquired knowledge into practice.

 

About the author

Christopher Martyr is past-chair of the OBA’s Insurance Law Section Executive.

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