Preparing for Trial in a Contested Passing (Continued)
Rule 52.04 of the Rules of Civil Procedure deals with the marking and numbering of exhibits at trial. Where appropriate and practical, a joint book of documents simplifies the use of documents and the marking of exhibits during the trial. With a joint book of documents, the Judge, the Registrar, each counsel and the witnesses only need to refer to one set of documents, rather than to multiple sets of documents. Depending on issues of admissibility, exhibits can be dealt with by marking each volume as an exhibit or each specific document, within a volume, as it is dealt with.
With respect to witnesses, amongst other things, the following may be done:
(i) make a witness list of anticipated witnesses for each of the parties;
(ii) prepare a chart of the issues/documents to be proved by each witness;
(iii) identify and consider the concerns, evidentiary or not, with the evidence and documents to be dealt with by each witness (some concerns might include whether the Rule in Browne v. Dunn is an issue, are there hearsay evidence concerns, do originals of the documents need to be proved, is a document admissible, what Notices are required under the Ontario Evidence Act, is a witness a hostile witness, and s.13 of the Evidence Act);
(iv) ensure summaries of the evidence of witnesses are obtained and provided if the provision of summaries has been agreed to, or ordered at the pre-trial conference;
(v) prepare all witnesses you are calling and provide the witnesses with copies of the documents applicable to them, where practical;
(vi) prepare for the examinations in-chief and cross-examinations and the documents to be referred to prior to preparing your witnesses;
(vii) if the witnesses are experts, ensure Rule 53 of the Rules of Civil Procedure is complied and be mindful of Rule 31.06 regarding the scope of examination on discovery of the findings, opinions and conclusions of one’s experts;
(viii) prepare and serve Summons to Witness (Rule 53.04); and
(ix) consider whether an Order excluding witnesses is necessary (Rule 52.06).
Consider anticipated objections to evidence to be adduced by opposing parties and prepare submissions and applicable law, as necessary, prior to the trial.
In addition, while demonstrative evidence is a common feature of jury trials, thought should be given as to whether there are tools such as a family tree diagram and/or a chronology of events that can be prepared to assist the Judge at trial.
Thanks for reading.
Craig
