The importance of proper examinations-in-chief is present in all cases obviously, but in some cases is even more important when the opposing party may not call any evidence and you do not get a chance to cross-examine opposing witnesses. For example, fighting the Canada Revenue Agency in a Tax Court case.
The art of proper examination-in-chief, in my view, involves a W5 approach. In other words — who, what, when, where, why (and the occasional how).
Your questions should be short and concise so when the judge hears the question and hears an equally short and concise answer, his or her next thought is one of the “W’s.” Your examination should follow that train of thought.
For example, if you ask about a meeting, the listener would usually then start to ask in his or her mind the following questions:
• Where was the meeting held?
• What was the purpose of the meeting?
• Who called the meeting?
• Who was present at the meeting?
• What was discussed at the meeting?
• How long did the meeting last?
• What was the result of that meeting?
Ask yourself how you would be thinking when you hear evidence about an event. Your own mind would likely then follow this W5 track. So the questions in court or in an arbitration should follow that track.
Do not leave the witness to do all the talking. Oftentimes when reviewing a transcript in the Court of Appeal, you will see a short question, followed by a half-page answer. If you read a transcript like that then, in my respectful opinion, the direct examination has not been properly carried out. One should never lose control of a witness, and dictating the pace of the evidence is crucial depending on the ability of the judge or arbitrator either to electronically or manually make notes.
There is no reward for speed. Remembering that judges are mere mortals should be your guiding perspective. Always keep an eye on the judge or arbitrator before going to the next question. When the judge or arbitrator is required to look at an exhibit or look at one document in a volume of exhibits, make sure that the judge is at that exhibit before you begin the question related to it.
In terms of a way to facilitate a good examination-in-chief, the use of agreed books of documents or exhibits is, in my view, the best way to tell a story. Hence, the importance of agreeing on as many documents prior to trial as possible.
With the aid of the book of documents or exhibits, you simply refer the witness to a specific exhibit, at the same time watching and making sure that the judge has it in front of him or her. You then use the document to direct your question. In that regard, make sure to make clear the exact page number of the document, the location of the paragraph in question, and the specific point in the paragraph to which you want the witness’ attention to be brought. In short, you should be able to say that you want the witness to look to “page 1 of exhibit 9, second paragraph, last sentence.” This not only makes for a good examination-in-chief but also makes for a much better transcript when the case goes to appeal.
It is axiomatic that leading questions are not to be used. Putting aside the evidentiary rule that prevents leading questions, if every leading question was objected to, trials would take much longer than they presently do. A trial judge once said that if all he or she hears is counsel’s voice in the examination-in-chief, followed by one-word responses from the witness, those answers get very little weight.
Anticipation of evidentiary matters at trial
It is axiomatic to say that PREPARATION is the key to any trial or arbitration work. Knowing the evidence, preparing witnesses, researching the law, and preparing an opening statement and trial books are all part of that extensive preparation.
But what I have not seen (at least in Manitoba) virtually at all is what Carly Simon once sang: ANTICIPATION. By that I mean anticipating what evidentiary issues/objections/rulings might pop up in the trial, especially in a longer one.
In court, you should have with you those legal authorities that will support the positions that you will take should various evidentiary objections arise.
This “support” should consist of taking with you the latest edition of Sopinka, Lederman, Bryant — The Law of Evidence in Canada, the Evidence Act, and the relevant rules of court. In addition, we have prepared over the years, and take to court in every instance, a trial book covering a number of evidentiary topics that customarily arise in the course of a trial. This trial book has an index of 12 topics together with excerpts from Sopinka, the Evidence Act, or the rules of court, and copies of the most recent cases on point. In this trial book, the topics with supporting authorities are:
• non-suit motions
• hostile/adverse witnesses
• counsel’s obligations concerning a witness in the stand
• use of examination for discovery read-ins
• the collateral fact rule
• the rule in Browne v. Dunn
• expert evidence
• use of notes or aide-mémoires
• self-serving evidence and prior consistent statements
• failure to call important witnesses and the adverse inference rule
• vicarious liability for statements/admissions of another person
The trial book must always be updated as the years run by to keep up with the evolving principles of evidence and the evolving application of evidentiary principles.
In over 150 civil trials, I can honestly not recall any more than five instances where opposing counsel (often senior counsel) even had the basic tool, i.e. Sopinka’s text.
Curiously enough, in a relatively recent five-week trial in the Ontario Superior Court, Justice John dePencier Wright provided counsel with his own aide-mémoire on expert evidence and the various facets involved in admitting and considering expert evidence. That aide-mémoire contained, similar to a trial book, authorities on point. Therefore, in my view, maintaining and using your own trial book is essential to the proper “shaping” of the evidence by counsel, whether it be in a civil trial, a commercial arbitration, or an administrative hearing.
How many witnesses should be called
As an articling student, I was taught that witnesses can often get in the way. Therefore, proving facts through other means is an essential aspect of trial procedure — for example, through the mouth of the opposing party, i.e. examination for discovery read-ins, or through pretrial admission (notices to admit facts), or through agreed books of documents/exhibits. Such methods often eliminate the calling of certain witnesses at all, or at least reduce the number of needed witnesses. Calling two witnesses to prove a fact or facts, where only one is necessary, can often give opposing counsel fodder for cross-examination.
Finally, often a witness is called, or so counsel says and intends, only to deal with a particular point in the case. However, on cross-examination, that “limited use” witness can be questioned on any relevant matters that the cross-examiner can think of, often leading to the evidence being “shaped” in a way that was never intended by counsel. Unless the “limited use” witness is absolutely essential to prove your case, think carefully about not calling that witness.
Obviously there can be negative consequences of not calling a key witness — i.e. the adverse inference rule might be invoked. This is all the more reason for proving facts in the pretrial process (i.e. through a thorough and concise examination for discovery) without the necessity of having to call actual witnesses to testify.
Dave Hill is a partner with Hill Sokalski Vincent Walsh Trippier LLP in Winnipeg. His practice encompasses virtually all aspects of civil litigation, including corporate/commercial litigation, arbitration, and mediation.