The Conduct of the Trial

June 28th, 2014 by John Schuman

This is the Ontario Family Law podcast, featuring issues related to marriage, separation, divorce and even child welfare issues.  It is a companion to the book The Basics of Ontario Family Law, which is available on Amazon, or by calling 416-446-5847.  My name is John Schuman.  I am a certified specialist in Family Law, I am a family lawyer mediator, arbitrator and collaborative lawyer and I am the partner managing the family law group at Devry Smith Frank LLP in Toronto.  Today on the podcast we go over the conduct of a family law trial.

This is the third in a series of podcast that explain the family court process in Ontario. Today we are going to briefly go over the last step in Family Court – the trial.

Of the family law cases that are actually litigated in court, only 5% of them make it all the way to trial.  95% of the cases in which a separated couple had an agrument serious enough to go to court settle before they actually get to trial.  When a case does go to trial it is usually for one of two reasons:

  • 1. It may be because the facts of the case are not clear or it is not clear how the law applies to those facts so there is no real guidance from previous court decisions, or the written statutes, as to how the case should be resolved.  Without that guidance, it may be necessary to have someone decide.

 

  • 2. One or both parties are being unreasonable and are refusing to settle even though it makes sense to do so.

If your case is going to trial it is absolutely crucial that you speak to a very good family law lawyer with trial experience.  If your case is one of those normal ones where it is not clear how the law applies, then you will need some guidance as to how to apply the existing law to convince a judge that your perspective is right.

If it is the second circumstance, where someone is being unreasonable, then you also really need to speak to a lawyer first because you want to make sure that you are not the one who is being unreasonable and second in such a trial, because the trials are extremely expensive, if you lose you may be on the hook for the other side legal bills which could be a huge amount of money.  You could literally lose everything if you lose the trial.

Another reason why it is important to speak to a family lawyer about your trial is that many of the rules for conducting a trial are not easy to find.  Trials are extremely complex and whole books have been written about how to do them.  However, if you look at the family law rules, you will not see much about trial procedure and those rules will give you no idea what a trial actually looks like.  If you are going to a family law trial, you will also want to familiarize yourself with the Ontario Evidence Act, which provides some assistance as to what evidence is admissible and what is not and will give some insight into what you have to do at trial to get your evidence before the court.

However, the vast majority of the rules for how to conduct a trial are not written down in the statutes for the rules they have developed through the jurisprudence and through convention.  There are great many rules for what to do at a trial but you can only find by reading court decisions that set out those rules.  But those decisions can be quite hard to find and some of them are hundreds of years old.

In addition, many of the ways you do things, tendering exhibits or a witness for example, have been developed through convention.  These are practices that lawyers learn through experience, hopefully having done trials with someone who is very good at that.  You will need to read some very thick books about how to handle the trial to learn about these conventions and how you are supposed to do things properly.  Learning how to do your trial properly will take you a lot of time, probably hundreds and hundreds of hours, which is the time that lawyers spent in law school. Conducting your trial the right way is important because you have to persuade the judge.  If the judge does not understand what you are doing or finds it difficult to follow you, or if is irritated because you don’t even know what you are doing then the judge may not be persuaded by what you are saying and you could lose your trial.

[Podcast #16] The Conduct of the Trial

In this podcast I will give you a very broad overview of what trials look like and some of the general types of rules that apply to trial.  It is not possible for me to go over every rule or to explain how those rules apply in your specific circumstances.  That is a lot of information that is simply beyond the scope of this podcast, but it is something that you could get help from a good family lawyer.

Prior to the trial there is something called a trial management conference.  At the trial management conference, the judge sets out how a number of things are done such as the preparation of exhibit books, how opening statements will be delivered, and whether it is possible for the parties to agree specific facts, or specific documents, or the matter in which some particular things will be done.  So, if you have gone through your trial management conference, hopefully you will have an idea of all the things you have to get done and filed prior to the trial.

For example, there are deadlines by which you must serve expert reports if you intend to try to call an expert to give opinion evidence at trial.  There are also deadlines by which you must give formal notice pursuant to the Evidence Act that you intend to introduce certain types of evidence.  Likely, there are also timelines by which you must serve your materials in relation to objections or preliminary issues for the trial.

Once you have gotten through all of that, it is time for the applicant to give his or her opening statement.  The opening statement is an overview of the evidence that the applicant expects to provide to the court during the trial.  The opening statement itself is not evidence.  It is just a synopsis of what the judge is going to hear later so that the judge understands where that evidence is going and is able to connect to the dot between the individual witnesses and their documents.  The opening statement, through a synopsis of the evidence, should give the judge an idea of why the facts support the applicants’ position in the trial.

After the applicant gives his or her opening statements, the respondent can also give an opening statement.  However, the respondent is not required to give an opening statement right then but can instead decide to deliver the opening statement after the applicant finishes all of the applicants’ evidence and before the respondent judge calling witnesses.  This is a strategic decision that the respondent must make and there are many considerations but someof which can be quite particular to the each individual case, that go into that decision.

At some trial management conferences, the judge may order the parties to do written opening statements and deliver them before the beginning of the trial.  The written opening statement is the same thing as an oral opening statement in the court room but obviously the timing for those opening statement is before anyone call the evidence at the trial.  As there may be tactical advantage to the respondent of waiting to deliver his or her opening statement until the applicant finishes the applicants’ case at trial, the respondent may want to consider the trial management conference whether to oppose order for written opening statements.  However, there are also times when it may be to respondent’s advantage to have a written opening statement in front of the judge throughout the trial.

Once the applicant has finished his or her opening statement the applicant can start calling witnesses.  At trials, witnesses must actually show up, they must come to court stand in the witness box swear to tell the truth before giving their testimony “live”.  The only exception to this is where the parties and the trial judge have all agreed that a witness does not have to attend court but can provide evidence in some other way.  However, those exceptions are quite rare.

The Applicant or the applicant’s lawyer gets the witness to deliver the witnesses testimony by asking the witness questions.  However, a party can only ask open-ended, non-leading, questions to the witnesses at that party’s calling.  That means, the questions that the party or the party’s lawyer cannot suggest the answer in any way.  In fact, in addition to not asking open-ended questions, it is usually much more persuasive if the witness can deliver his or her testimonies tell the entire story only being asked a very very few questions.  There are also a number of other rules that you have to know to present the evidence through your witnesses.

First, witnesses can only give evidence about things if they actually saw or heard.  Witnesses are not allowed, with some only a few very complicated exceptions, to tell the court about what other people told them.  This includes presenting letters of support.  The court will not admit letters from people saying what they saw or heard or what they think of a case unless the author of the letter actually comes to court, gets into the witness box, and is subject to both direct examination and cross-examination.

Witnesses are not allowed to give their opinion on anything. They can just say what they personally saw or heard.  Unless a witness has been qualified as an expert on a particular topic witnesses are not allowed to give their opinion of anything other than what essentially an observer walking by on the street would be able to say about something.  It is usually not even possible to say whether someone was drunk because that involves forming an opinion as to whether the person’s behaviour was  a result of the consumption of alcohol or from some other cause which only a very limited number of expert professionals can determine or only after having done specific testing.

Further, illegally obtained evidence is almost never admissible.  One common way that family law litigates get themselves into trouble is by trying to admit the tape recordings of conversations to which they were not a party.  For example, that could be a conversation between the other side and the children when both parties were not present.  Recording a conversation to which you were not a party is a violation of the criminal code so not only may the court refuse to admit the recording into evidence but the person tendering that evidence could be charged criminally.

There are many other restrictions on evidence, which are too numerous to go over in a podcast, but they include such things as the inadmissibility of documents that cannot be authenticated as being an original or a true copy of an original.  There are hundreds of these such rules which is one of reasons why it is necessary to consult a good trial lawyer to provide you with some advice on the particularities of your case if you cannot have a lawyer represent you at trial.

If the party person asking the witness questions breaks any of these rules, then the other party stands up and “objects” to the question.   What follows next is a mini-motion in which both sides makes their legal argument on whether the question or the evidence sought should be allowed.  Sometimes these arguments include references to previous court decisions.  Sometimes they involve reference to the Rules of Evidence.   Arguing these motions, on the spot, and sometimes with little or no warning, are one of the most challenging parts of doing a trial.  Sometimes parties do try to slip in inadmissible evidence, so both sides have to be ready to object and then make a convincing argument to the judge.

Once you finished asking your questions of your witness then the opposing party or party’s has the right to cross-examine them.  There are much fewer restrictions on what the parties can do in cross-examinations.  For example, it is not only permissible to ask leading questions during cross-examination, but preferable to do so.  However, there are still some rules.  Cross-examiners cannot be abusive or battering and they must allow the witnesses to answer the questions.  In addition, parties who are cross-examining a witness have to be concerned about other rules of trial that may affect what the party can do later in terms of introducing documents into evidence.  One example, and perhaps the most common, is called the rule in Brown v. Dunn.  That rule says that you cannot introduce any evidence that might cause the court to disbelieve the credibility of a witness unless you have specifically put that evidence to the witness during cross-examination.  That evidence which might suggest to the court that a witness is lying is always important and it is therefore quite a shame if you cannot use that evidence because you did not ask the witness about it during cross-examination.

Cross-examination requires quiteabit of skill.  You need to keep the witness, who is usually opposite in interest to your case, under control so that you do not hurt your case further during cross-examination.  Trial lawyers are practiced at doing that.  But you may not be and you could really hurt your own case if you do the wrong thing during cross-examination.

After cross-examinations are completed, the party who called the witness is allowed to ask questions to clarify any of the answers given in cross-examination.  The witness is not allowed to speak on any new issues or do anything other than answer questions that relate directly to the questions in cross-examination.

Once the applicant has finished the testimony of all his or her witnesses, any parties who are supporting the applicants’ position get to present their case.  When they are done, then the respondent or respondents in the trial can either and deliver their opening statement if the respondent has not already done so, and then call all of his or her witnesses.

When all of the witnesses are completed giving their testimony, then it is time for closing arguments.  In closing arguments, a party summarizes the evidence that the court heard and perhaps points out the most important testimony for the judge.  Then the party goes over the law that applies to the case and explains how the evidence that the judge heard, when coupled with the law, together mean that that party must win the trial.  Closing submissions are done in the reverse order to which the judge heard the evidence with respondents going first and working back to the applicant who gives the closing statement last.  The judge may ask questions during the closing arguments, but the parties do not speak to each other they only speak to the judge to try to convince the judge to rule in their favour.

Once that is all completed all that is left is for the judge to make a decision.  It may take the judge quite a while to release the decision particularly if it was a long trial.  The decision is, of course, binding on both parties when it comes out.

Once the decision is out, the parties may have to address the judge about who has to pay the cost of the trial, meaning whether it is necessary for one party to pay all the legal fees and disbursements of another party.  However, that is the topic for another podcast.

I hope you have found this podcast that briefly outlines the conduct of a family law trial useful and informative.  We will have more podcasts coming soon on other important family law topics.

This is in the Ontario Family Law Podcast.  My name is John Schuman.  You can reach me at www.devrylaw.ca or by calling 416-446-5847.  I hope that you found this discussion of family court procedure helpful.  We will talk again soon about other family law topics.  Thanks for listening.

 

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