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Just practising: Litigation

|Written By Jennifer McPhee

Litigators have to care deeply about losing in order to be good at winning. And the stakes are so high at trial that most lawyers experience pre-trial jitters. But how can they make sure their escalating stress levels don’t completely mess them up before they even walk into the courtroom?


Corporate-commercial litigator Kate Broer has seen more than one lawyer become so paralyzed with fear about a looming trial they’ve actually gone into a state of denial. They continue to count on the increasingly slim chance of a last-minute settlement, and fail to prepare, says Broer, a partner at Fraser Milner Casgrain LLP.


“When you’re down to the crunch, and there hasn’t been sufficient preparation, that’s when crises happen,” she says. And start weeks, no the day, before. After doing a pre-trial checklist for a one-day trial, you may figure out that there’s not much to do. But your anxiety level will spike as the trial approaches, if you “haven’t even covered off that you don’t need to do a whole lot,” she says.


Broer relies on experienced clerks and junior lawyers to keep checklists so she can track, for instance, whether Evidence Act notices are out, whether requests to admit have been put out or responded to, and whether she’s thought about all the summonsing issues she may have with witnesses. “I use them as check, almost as a second-guesser,” she says.


She collects all her pre-trial thoughts in one place and keeps a binder or notebook for each trial. She also suggests doing pre-trial research on the judge that will be sitting at the trial by reading past decisions and talking with lawyers who’ve appeared before him or her. The more you understand about your audience, the more effective you will be, she says. “You may learn that a particular judge is a stickler for the rules, which is just fine, but then you can make sure you are prepared for that. Or you may learn that a particular judge runs a fairly loose court, and it can give you some sense of the tone and demeanor that you should take in the courtroom.”


She’s seen lawyers at trial be downright nasty to other counsel in the heat of the moment because their stress levels are so high. “Unfortunately, that’s not uncommon,” she says. And some otherwise calm-and-collected senior lawyers will blow up when junior lawyers don’t give them enough space. “The most important thing is to let them be alone with their thoughts,” she says. “It can add stress if you are constantly in their face saying, ‘Don’t forget this point and that point,’ and harassing and haranguing them with the details.”


For uber-organized litigator Nicholas Holland, a partner at WeirFoulds LLP, easing pre-trial jitters is also about preparation, mostly in his pre-trial notebook.


First, he organizes a chronology of the facts in his notebook because it helps him understand “the factual matrix of the case.” Then he isolates the legal issues and relies on invaluable feedback from trusted colleagues to help him pinpoint the legal issues and strengths and weaknesses of the case. Holland also organizes pleadings in his notebook, and then uses a chart to set out the various elements of the law, relevant to the cause of action.


“And I figure out how each of those elements are going to be established by which witnesses, and which documents, and which admissions have been received already,” says Holland. “So, for example, when it comes down to a claim for solicitor’s negligence, if there’s been an admission that the defendant was the solicitor for the plaintiff, you don’t have to worry about establishing the duty of care.”


Then he pinpoints the “colour of the case.” Beyond the basics, he determines “what other sympathetic facts are out there, and how are you are going to establish those, and which witnesses would assist you to establish those?” In a separate section, he lists who needs to testify, when, and what they are going to say. He rearranges affidavits and documents in chronological order because sometimes, when he sees them in order, it alters his view.


Although some lawyers don’t prepare closing arguments until near the end of trial, Holland writes both his opening and closing arguments well in advance and tweaks as necessary, later. “If you are writing your closing arguments in advance of trial and realize you can’t get from A to C without B, you know that you’ve got to get B somewhere. And you don’t want to find that out after the trial.”


After doing so much preparation, all Holland needs to do is quickly meet with witnesses at the end of each trial day.  “You meet with them, you’ve done it before, you go over and just remind them about what they need to say. And that shouldn’t take you too long. So you will be able to call it a night, have a nice meal, and get a good night’s sleep.”


Preparation calms him and makes him feel in control — but it doesn’t completely cure pre-trial jitters. “I think if you ever stop experiencing pre-trial jitters, you should probably leave the profession because it’s completely normal to be frightened as a trial approaches,” he says. “It’s an enormous undertaking. At the same time you should be nervous, you should also be excited because [going to trial] is really what civil litigation is all about.”

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