After more than three years of writing blogs, you will note that I am not a big fan of taking matters to trial in family law or child protection cases. So are most lawyers practicing in these areas of law. Only about 3 to 5 % of cases ever reach the trial stage. Without getting into all of the reasons, the must succinct explanation that I give to my clients is to be the author of their own good fortune (i.e. to resolve the dispute on their own terms), rather than falling victim to the whim and temperament of a stranger (a trial judge) who may not like what they have to hear from the client and their witnesses at trial.
Trials are almost always avoidable, but there are a few occasions where they are not. As I reference in the title to this blog, sometimes to make sure that you never get to a trial, you have to prepare for one, just in case it is the only option left open to you. This blog will deal with, in very broad strokes, how preparing for your matter to proceed to trial can actually help you avoid a trial, if the option is presented to you. This blog will not deal with trial strategy, trial tactics, or how to conduct a trial. There are other sites for that, and if that is what you want, then be careful what you wish for, because soon enough, you will find yourself before a judge on day one of your trial, and you will likely find yourself wishing that this bad dream would just simply go away. But it won’t. And by then, it may be too late to refer to this blog!
Step #1 – Your Pleadings
The first step to prepare for trial is to ensure that you have well drafted pleadings. Whether you started the court matter, i.e. you are asking a judge to make certain court orders, or whether you are defending the matter, i.e. you are asking a judge to not make some/all of the court orders that the other side of your case is asking for, your pleadings will be the first opportunity to set out your position. In its simplest terms, the pleadings serve two purposes:
To set out what you are asking the judge to do for you:
e.g. I want an order for sole decision-making responsibility of my son, and an order for limited parenting time between my ex-husband and my son
e.g. I want an order that my ex-spouse’s claims will not be granted, and instead, to be granted equal decision-making responsibility of my son and to be granted specific and generous parenting time with my son
To set out why you are asking the judge to do what you want:
e.g. I am the only parent who has raised my son, and my ex-husband was an abusive alcoholic who did not parent the child at all, and he only wants joint decision-making responsibility to avoid paying child support
e.g. Both my ex-wife and I co-parented our son, and I played an equal role in his care and upbringing, and we have an established parent-child bond that my wife is trying to interfere with because she has a new boyfriend
Both of these factors have to be carefully supported with facts, to establish your theory of the case. Well drafted pleadings will have statements of fact, and not personal beliefs, myths, innuendoes, hearsay, etc. The pleadings must state the factual basis for both what you want, and why you want it.
If your pleadings were drafted satisfactorily, then you have created a solid fortress upon which to build your case towards trial. If not, then both the court and the other side will not know what your case is about, or why you are taking the steps you are taking, or even worse, they will easily spot the weaknesses in your case. If you need to amend your pleadings to strengthen them, ask the judge for permission to do so at the earliest opportunity you can. Just like in the children’s story of the Big Bad Wolf and the Three Little Pigs, if you fail to do so, your “house of straw” will easily be blown away at trial.
Step #2 – Your Disclosure
In assembling your case, you have a constant obligation to provide the other side with your disclosure. This is the documentary evidence that you must supply to the other side to verify some of the facts of your case. Not all of the facts of the case will have supporting documents – for example, you will need rely on the in-court evidence of witnesses to elicit evidence to the court (we will talk about that soon). However, there are many facts that you will need to rely upon to provide/defend your case, and these include the following:
- Financial Disclosure – documents that will support/defend claims about income, expenses, assets, debts, e.g. income tax returns, notices of assessment, T-4s, invoices from third parties (dentists, orthodontists, school tuition, sports registration costs, etc.), real estate documents, mortgage documents, loan documents
- Medical Disclosure – documents to support/defend claims about one’s medical health, mental health assessments, one’s ability/inability to work, one’s ability/inability to parent, reports about substance addictions/abuse, hospital visits records, etc.
- Educational Disclosure – documents to support/defend claims about the children’s education progress, their attendance, their strengths, their disciplinary troubles, their interactions with other students and school staff (teachers, coaches, etc.); also, where applicable/relevant, documents to support/defend claims about the client’s or other side’s education progress and development
- Criminal Records Disclosure – criminal records of relevant parties, criminal incident reports, interactions with the police, complaints filed, bail terms, probations terms, etc.
- Child Welfare Agency Disclosure – have the parties bene involved before (or are currently involved) with CAS agencies, local or otherwise, disclosure notes, relevant court pleadings and court orders, etc.
- Prior/Other Court Disclosure – affidavits filed in previous/current family court or CAS court matters, affidavits or claims made in criminal or civil proceedings, transcripts from criminal or civil proceedings, etc.
In my nearly 30 years of practice, this is part of the case that is most often overlooked, as it is very time consuming, costly, and in some cases, difficult to obtain. But continuing with the children’s fable referenced in the last step, your organized due diligence in this step is where you turn a house of wood, which at first blush could leave you vulnerable to an attack, instead helps you build a house of brick, an impenetrable fortress, and one that the other side will be unwilling to challenge. This will most often lead you to an out of court resolution, without ever going to trial.
Step #3 – Your Witnesses
If getting all your documentary disclosure in order wasn’t enough to exhaust you and your lawyer, then assembling your witnesses could be the straw that breaks the camels back. But once again, and in conjunction with the documentary disclosure in step #2, this is where you formulate your bricks and mortar to make your case as solid as it can possibly be. At the same time, this is where cases are often lost, as there are many assumptions and mistakes made in deciding who will be a witness for your case, and what they have to say.
There are generally two types of witnesses you would need to call to support your case:
- Professional/Expert Witnesses – doctors, other healthcare professionals, real estate agents, police officers, teacher/educations staff, CAS workers, family support workers, and others who do not have a personal tie to you or the case, but they do have statements to make that will support/defend your position; and,
- Non-Professional (Lay Person) Witnesses – other than your own testimony, you may wish to call your current partner, your friends, family members, neighbours and others who do have a personal tie to you or the case, but they do have statements to make that will support/defend your position.
With both sets of witnesses, it is important to know what they actually know about your case and what they plan to say about your case. Many clients assume that all they need from the witness is their written statement, an email, or a text message from the potential witness, and that will somehow be enough for the court. Let me be clear – it is not. This is a very big assumption that clients often make, and sadly, their hopes of success are generally dashed at that point when I tell them as much.
In preparing the case before trial, some clients are reluctant to be specific about who they plan to call as witnesses; others are just the opposite – they give their lawyer a list of 50 or more people who can say great thigs about them, or if need be, say terrible things about the other side. That’s not what the lay witnesses are for. And clients who want that will be disappointed when such clients are not allowed to testify at trial, as they really have nothing to offer. A well-prepared lawyer-client team (and that’s what it is, a team effort) will take the following steps well in advance of trial:
- They go through the list of witnesses who can corroborate the client’s claims, or dispute those claims made by the other side;
- They discuss what those witnesses know and what they may say at trial;
- They assess how helpful the evidence of the witness is to the client’s case;
- They will contact the witnesses to find exactly what they know and what plan to say;
- They ask the witnesses if they are ready, willing and able to testify at trial;
- They identify any potential issues, if any, such as conflict in testifying, their availability, travel needs, interpreters, hearing amplification devices, expected commitment time, work requirements, need for a summons to witnesses, production of resumes/CVs, etc.
After going through these questions, the lawyer and client will agree on the list of witnesses. At the end of the day, the lawyer recommends, but the client decides who will and will not be called. Not all lawyers will agree to this term and may decide not to continue if they do not have the last word. Even then, if there are witnesses that the lawyer does not want to call, but the client demands it, expect the lawyer to have the client sign a form called “instructions to counsel” which basically says, “ok, I told you so, but you went against my better judgment.”
As a final word on this step, I wish to remind you that what a client plans to say may not be what they say under oath. It happens a lot, and especially with nonprofessional witnesses. They are not comfortable giving evidence under oath, they may have exaggerated what they knew/didn’t know, and the last place you want this tactical grenade to go off is at trial. So, prepare, prepare, prepare your witnesses!
Step #4 – Your Well-Being
After completing the above steps, before you decide to go to trial, take stock of what doing so will mean to you, your relationship with the other side (if it’s important to have one), your children, your families, your reputation, your time, your money, and your well-being. Is the cost of going to a trial (financial and otherwise) worth the cost to you and the others mentioned above (financial and otherwise)? Is it worth playing “chicken” if you plan to settle at the steps of the courthouse on Day 1 of the trial? With most people, the cost benefit analysis is not properly done, and they look at just the actual out-of-pocket costs, not taking into consideration the “other costs.” I wrote a blog a while back called “When to Waive the White Flag.” You may want to read it. Know yourself and your loved ones, and appreciate the impact a trial will have on both you and on them. Is it victory at all costs, or is it an empty victory of it cost you everything that is truly important to you? Only you, the client, know the answer to this question
As I conclude this blog, I want to leave with the notion that, much like in medicine, the most cost and dangerous option (surgery in medicine, trials in law) should not be the first option to consider when trying to resolve a dispute. It should be the last one. A good doctor will not recommend drastic weight loss surgery before other less intrusive options (better diet, exercise, medication, counselling) are tried and are shown not to be effective. It is only when all other options are exhausted that the last option is considered. It is no different in law.
However, please appreciate that the one major difference is that, in law, sometimes the optics of the “nuclear option” is the one you must commit to in order to convinced the other side how serious you are on resolving this dispute properly. As I said above, I do not like playing “chicken” with my clients’ lives, and most don’t like doing so either. But if you need to convince the other side you are serious about what you are seeking a judge to order/not order, then you must be willing to show that you are willing to play this out to its conclusion. And if that is the decision, then game on!