Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

• Print
• Comments
• Trackbacks

Today’s blog is the last in my series addressing preparation for trial in a contested passing. The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration. The critical aspect of trial preparation is that it begins at the beginning of a case; not literally, but certainly in the sense of being mindful at pre-trial stages of the evidentiary considerations and how the evidence is to be marshalled and presented.

Aside from ensuring that you have appropriate resource materials at the trial (such as texts dealing with the rules of evidence, the Rules of Civil Procedure, Probate Practice etc.), it is important to have prepared your opening and closing statements (to the extent possible), have prepared the necessary law regarding the substantive issues in dispute (casebook, factum), have addressed costs submissions (organizing offers to settle, preparing a Bill of Costs etc.), and have a trial binder with you at trial for your own use.

A trial binder usually contains the pertinent materials that you would like to have at your fingertips during the trial (ie. pleadings, orders, witness lists, witness summaries, answers to undertakings, listing of the types of evidence objections, offers to settle etc.). The trial binder will allow you to have quick access to information that you might only have a few minutes or less to locate and quickly review.

While most contested passings settle at a pre-trial stage, if a trial is necessary, it might well be won because one party was more prepared than the other.

Thanks for reading this week. Have a great weekend.

Craig

• Print
• Comments
• Trackbacks

Today’s blog, which is part of my series this week addressing preparation for trial in a contested passing, deals with several issues regarding evidence at trial.

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

• Print
• Comments
• Trackbacks

While contentious passings of accounts are regularly resolved at a pre-trial stage such as mediation, and without the necessity for a hearing, in certain circumstances a contested passing of accounts may only be resolved by way of a trial. In many cases, a successful result at trial is the direct result of the trial preparation.

It is perhaps trite to say, but trial preparation does not begin between the pre-trial conference and the commencement of trial; rather, it begins with the formulation of a strategy for the case, the identification of the issues in dispute, the determination of the evidence required to prove the case and the marshalling of that evidence. As such, while the ultimate strategy for a trial cannot be finalized until the pre-trial stages of the passing have been completed, and counsel have the benefit of a thorough review of the case (before the pre-trial conference), parties ought to be mindful of the matters to be dealt with at trial throughout the litigation and how such matters can be dealt with or addressed during the pre-trial stages, including through documentary disclosure, examinations and by way of orders of the Court (such as an Order Giving Directions or otherwise).

Having said that, my blogs this week will include a series that considers preparation for a trial of a contested passing.

Have a great day.

Craig