Getting ready for trial can be a daunting task if you don’t have a formula for preparation. You know your file, your know your client, you know your theory of the case, and you know the major issues that have prevented the matter from settling and thus necessitating the trial.
But now how do you get it all together and make sure all of the records are introduced at trial in the most efficient and effective manner possible?
Our firm has a trial clerk, Lisa, and in partnership with the lawyer on the file, she’s in charge of implementing our trial preparation formula. She’s very good at it, which is wonderful, because it’s a ton of work, and when done right, saves a ton of headaches. Each lawyer in our firm has one or more dedicated file clerks, but when a matter gets past a pretrial or final mediation and hasn’t settled, Lisa is assigned as the trial clerk and thereafter works the matter up to trial along with the file clerk. We’ve found tremendous benefit in having Lisa do nothing but trial work (she doesn’t carry a “normal” file load) as she doesn’t get distracted or overloaded by the normal flow of a litigation practice, and always keeps her eyes on the prize.
During trial preparation and at trial your documents don’t function in isolation, so I would recommend you develop a trial preparation checklist which includes issues such as early contact of witnesses, updated expert reports, booking hotels, making sure you have enough court shirts, etc. There are numerous precedents available for such checklists. In this short paper I’ll give an overview of our process as it relates to documents, which includes a Joint Book of Documents, s. 52 and s. 35 Notices of Intention, and Requests to Admit.
If your matter hasn’t settled and you think it’s going to go to trial, the first thing to do is to identify what documents you will need at trial. There is no hard and fast rule for which documents you need, but I generally start with the indices of my expert reports; if an expert relied on a record in coming to their opinion, I need to get that record in at trial. There is a temptation to simply grab your whole file and put it on a Notice of Intention or Request to Admit, but likely you don’t need (or want) everything in there. Many of the documents that are in your file are relevant (and thus were in your Schedule A of your AOD at some point) but that doesn’t mean you want or need them at trial necessarily.
There isn’t much of a short cut for this process – you just need to read the file from cover to cover. This isn’t wasted effort as this process allows you to refresh your knowledge on the file, tweak your theory or trial narrative a bit, make lists of witnesses that you’ve likely overlooked to date, and flag issues for preparing your client or other witnesses (particularly for cross-examination).
Once you’ve identified which documents you need at trial, you then need to split the documents into two piles – the ones where you’d rather have that evidence in through a live witness, and those where you just want to file the document but not through a witness unless forced to. This is usually a tactical decision, not a legal one.
I will choose to call a witness to testify to what a document might otherwise address, even if they could be filed as a Rule 52 business record for example, or completed on a Request to Admit or filed in a Joint Book, if the author will bring compelling colour to the witness stand. I often do this with a treating OT, or a physiotherapist who has seen a client since shortly after an injury all the way to trial – sure I could likely just file their chart, but why not have them sit on the stand and talk about how hard your client has worked at their recovery? In many circumstances you aren’t confined to either calling the witness or filing their record, but be careful not do duplicate this process too often as it is slow at trial, will irk the judge and the jury, and will cause your other live witnesses to pack less punch.
In our firm we always do trials with two lawyers, so once you’ve split your documents into the noted two piles, we then split the corresponding witnesses between the two lawyers, and then turn our mind to how to deal with getting the other documents in at trial.
In addition to proving an occurrence or transaction through a witness there are 4 other broad ways to get a document “in” at trial. 1. A Joint Book of Documents, 2. Section 52 of the Evidence Act (medical records), 3. Section 35 of the Evidence Act (business records), and 4. Request to Admit (Rule 51 of Civil Procedure). I say to get a document “in” not IN, because not all of these methods are created equal or achieve the same thing.
My first approach on most files is to discuss doing a Joint Book of Documents with the other parties. I say “most” files because there have been instances where insurance defence counsel have been so cantankerous and the tenor of the lawsuit so acrimonious that the possibility of agreeing on anything was impossible (think of certain insurer defensible or threshold programs). Putting those cases aside, a Joint Book of Documents is the most efficient manner in which to organize your trial materials, as long as it is done correctly.
The Ontario Court of Appeal decided two cases in 2020 and provided guidance of what you should and should not to do at your trial with a Joint Book of Documents (how to avoid ending up at the Court of Appeal).
Girao v Cunningham, 2020 ONCA 260 is a car accident case where the defence insurer prepared a “Joint Brief” which the self-represented plaintiff had no input in. The Court of appeal found that the highly redacted and selective brief resulted in a trial which was unfair to the plaintiff.
Bruno v Dacosta, 2020 ONCA 602 is an assault case where the Court of Appeal found that the trial Court was over-reliant upon the Joint Book, and that the use and characterization of documents therein was riddled with errors and confusion, which upon appeal meant that the trial Court’s decision was insufficient to permit meaningful appellate review.
The Court of Appeal stated in both Girao and Bruno that there are questions which must be addressed “in every case” regarding documents in a Joint Book.
The Court of Appeal went further than the list above and noted that best practice is for there to be a “written agreement between counsel” as to the above questions. The Court further noted that the agreement should be reviewed by the trial judge and with counsel on the record, “to ensure there are no misunderstandings”.
The trial judge maintains their role as the “gatekeeper of evidence”. The Court of Appeal noted that the agreement between counsel is not automatically binding on the trial judge. The Court of Appeal also cautioned that a judge should probe any ambiguities in the agreement ahead of time as during the trial it can be too late, particularly once issues of hearsay have crept into the trial (this is what happened in Bruno).
As a practical matter it is not required that all documents in the Joint Brief be characterized the same. For example there can be one section for those agreed as both authentic and for the truth of their contents, another for just authenticity but not contents, and then a section for disputed documents. This type of delineation is helpful to the trial judge, and it also requires that you really know your case. When you review your documents and then discuss where to put them with opposing counsel, this also provides a good forum for narrowing of issues in dispute or even potential settlement.
If a Joint Book isn’t possible between the parties, or for those documents that fall in the “not admitted” categories, it is necessary to rely on other methods to get your documents in as evidence at trial.
Much ink has been spilled on papers more detailed than this about the intricacies of Section 52 and 35 Notices under the Evidence Act, and I don’t plan to reinvent that here. I can commend the very thorough 2019 paper by Kirsten Crain and Christene Kucey available on CanLii. At a very basic level, Section 52 and 35 can be used as statutory exceptions to the hearsay rule. These sections are aimed at common sense, smooth trials, and costs savings. These sections provide that qualifying business records are admissible for the truth of their contents (s. 35 – business records, including hospital records), or that medical reports can be admitted with leave of the Court without calling the author (s. 52).
Where business records admissible
(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. R.S.O. 1990, c. E.23, s. 35 (2).
(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action. R.S.O. 1990, c. E.23, s. 52 (2).
Requests to Admit are the least technical and likely the most cumbersome method for getting your documents into evidence, but we still do them quite often. The main reason I like a Request to Admit is that they provide clarify and comfort about exactly what opposing counsel is agreeing to. You can draft your Request any way you wish, and then the recipient has 10 days to reply admitting, refusing to admit (with a reason), or if they don’t reply it is considered a deemed admission. Rule 51 of the Rules of Civil Procedure provides:
51.02 (1) A party may at any time, by serving a request to admit (Form 51A), request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document. R.R.O. 1990, Reg. 194, r. 51.02 (1).
As the plain language in the rule provides, you can request the admission of authenticity of a document, but you need to serve an accompanying request to admit the facts therein (and we delineate the facts with painstaking detail – “plaintiff attended at X clinic on Y date, saw Z doctor… ).
The process of preparing your documents for admission and use at trial requires careful preparation. When you are staring at a virtual stack of banker’s boxes (in your cloud storage I presume) it is tempting to just think about filing them holus bolus. Bad idea. Develop a trial preparation and document review strategy that works for you and your firm, and use your process to polish your trial theory and narrative, and to ensure that all of the documents you need to win will be admitted in the most efficient and effective manner possible. A Joint Book of Documents is an invaluable aid at trial and is aimed at efficiency and organization. Each of s. 52 and s. 35 of the Evidence Act and Rule 51 Request to Admit are aimed at trial efficiency and costs savings, and thus have concomitant costs consequences for unreasonable refusals or calling of unnecessary witnesses.
Warren WhiteKnight is a Lawyer and Partner at Bergeron Clifford LLP. He is based in the firm’s Kingston office but travels throughout Eastern Ontario each week as clients’ needs require. He holds a Certified Civil Litigation Specialist designation by Law Society of Ontario.
Warren is a Queen’s Law graduate where he achieved top 10% standing all three years, and received numerous course prizes and scholarships. He has been the Past President of the Frontenac Law Association.
Warren regularly represents his clients in court and tribunal proceedings and has an excellent track record of achieving results both in court and in out of court settlements.