S6 EP5 | Ten Tips for Winning Your Next Trial
Hosts Ted Brook and Erin Brown sit down with litigators Stephen Taylor and Tiffany O’Hearn Davies from the Toronto office to share their top ten tips for winning civil trials in Canadian courts.
Drawing on years of experience navigating complex disputes, Tiffany and Stephen unpack what true preparedness looks like—from organizing evidence and supporting your witnesses to managing tone and reading the courtroom. They explore how to balance fact with impact and explain why success in the courtroom depends on focus, strategy, and civility.
Together, they highlight why winning a trial is not only about theatrics but about meticulous preparation, calculated judgment, and unwavering professionalism. Whether you're a seasoned litigator or heading into your first trial, this episode offers practical wisdom and candid reflections to help you show up ready—and win.
This episode is accredited 0.8 substantive hours in Ontario and 0.8 substantive hours in British Columbia.
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[00:00:02] Ted Brook Hello and welcome to Disputed. I'm Ted Brook.
[00:00:06] Erin Brown And I'm Erin Brown.
[00:00:07] Ted Brook Today, we are talking about trials and how to win them.
[00:00:11] Erin Brown And joining us today are Tiffany O'Hearn Davies, who is a senior associate based in our Toronto office. Tiffany has a diverse disputes practice encompassing a broad range of complex commercial and civil litigation matters, including sensitive investigations. Stephen Taylor is a litigation partner based in our Toronto office. He practices complex commercial litigation with a special focus on technology and infrastructure disputes. Welcome Tiffany. Welcome, Stephen.
[00:00:41] Stephen Taylor Well, thanks so much for having us today.
[00:00:43] Erin Brown Yeah, great to have you both on the podcast. Okay. Ted, can you wanna lay out what we're gonna talk about today?
[00:00:49] Ted Brook Well, hopefully, Erin, we're you and I aren't gonna talk about much because we have the pros here. And what we wanna do is sort of just sponge up all of the best tips, advice from Stephen and Tiffany about how their trials work, how they win their their trials for their clients, because in my practice at least, doing a lot of class action work, trials don't happen very often, right? Maybe like once a year, I'm pulled into a trial. And so Stephen and Tiffany, I don't know, do you think that the trial and the sort of the way that it differs from other types of hearings, do you think that this is becoming a lost art or are you guys seeing trials frequently enough that it's just me who's missing out?
[00:01:39] Stephen Taylor So from my perspective, there's sort of trials and I know we don't have video, but then there's sort of air quote trials. And so there's.
[00:01:48] Ted Brook You just did the air quotes, yeah, for our listeners.
[00:01:52] Stephen Taylor Exactly. And so the trial proper, especially, and when people think of trials, they may be thinking of jury trials, what you're watching on the TV with the jury of your peers there deciding it. I think in civil litigation, jury trials are almost effectively a lost art. They're they're not non-existent, but they're so rare as to be basically non-existent. That then you have obviously the trial in front of a judge, which is still quite uncommon, but far, far more common than your than your jury trial. And then you have sort of the alternatives to trial, things that look a lot like trial, but are not quite trial. You have arbitration hearings, you have, I practice a lot of construction disputes, so you have combined dispute board hearings, though those kinds of issues. And then in my special situations world, I'm dealing with a lot of applications and hearings that way, or or summary judgment applications and motions. So if you include those, there's a lot of different ways you're getting in front of a judge for a determination on the merit, but certainly trial proper, I think are if not few and far between, not as common as some of the other forms of resolution I see.
[00:03:19] Erin Brown Stephen, I think one of the most shocking things that you just said is that can you confirm for me that practicing as a lawyer is in fact not what it looks like on TV?
[00:03:27] Stephen Taylor I know it's.
[00:03:30] Erin Brown Our lives are not like suits, which I think was probably jarring to to listeners. No, I kid.
[00:03:35] Ted Brook Tiffany, before we get into your your advice, because both of you do have that sort of valued trial experience, what do you think makes a trial different than other types of hearings, whether it's an application, an appeal, or a tribunal hearing?
[00:03:49] Tiffany O’Hearn Davies There's a lot of things that are similar, right? And you're gonna have your witnesses, you have the the decision maker who's making the decision, but there's just something special about getting into a courtroom, robing up. There's a formality to it. Judges are they're gonna be more strictly applying the rules of evidence. There's this, there's a likelihood of an appeal, possibility of an appeal, right? So it's just it's just a different, it's a bit of a different dynamic. Like you're standing up, you're walking up to the lectern, you're, you know, addressing a judge. It's very formal. The witnesses are up on a stand. It feels there's like a it feels significant in a way that's that's different. And I think that impacts your advocacy. You have to it's you have to practice and you have to advocate in a slightly different way. And I think your witnesses also they feel that too, and you have to prepare them for that. There's something very different about sitting on a witness stand next to a judge than there is being in your living room over over a Zoom call.
[00:04:55] Ted Brook Okay, let's get to it, guys. So you have you have 10 tips for us. Stephen, starting with you, what is number one? What is your number one tip?
[00:05:04] Stephen Taylor So, number one tip, and I do it not just sort of in random order, but I think this is the most important tip from my perspective. And it's that preparation is absolutely critical. Preparation, preparation, preparation. And actually goes to one of the points when we're talking at the outset of some of the differences between sort of a trial and other forms of decision making. When you have live witnesses there in front of a judge, you need to be able to go in there with an expectation of what your witnesses are going to say, what the witnesses on the other side are gonna say, being able to box in and be ready for anything that might come up. Because it's much, much less controlled than in other material or other circumstances where you have the materials ready. You might have affidavit witnesses, you might have examinations out of court, and therefore you have that feature of control. At a trial, you have less of that because you're going in, you have live witnesses, and and you can always get potential curveballs, and preparation is one of the key ways of dealing with that. So I'm sure people are aware, but trial to get your evidence in, you're gonna have examinations in chief. So your witnesses are gonna go up, you're gonna be asking them questions, they're gonna be telling their side of the story. You're never gonna go into that cold. You're always gonna have sat through sessions with your witness. They're gonna know the questions you're gonna ask. You're gonna know the answers they're gonna give. It's not a script, nobody's memorized it, but you shouldn't be asking questions that come as a surprise to your witness, and you shouldn't be getting answers from your witness that is a surprise to you. That all of that should be known to you. Cross examination, obviously, you're not gonna have the same level of preparation control with the witness because there you might get some answers that are somewhat of a surprise to you, but one of our rules that we use is that when you're cross examining somebody, you should know what their answer is going to be. And the way that you know what their answer is going to be is because you have some sort of document in the record, something from discovery that you can refer it back to. So if they try and come out of left field, give you something new, you have something to tether their answer to. And preparation is really the key to getting good evidence from both your witnesses and from the witnesses of the opposing side.
[00:07:56] Tiffany O’Hearn Davies Oh, I totally agree. I think preparation is the most important thing ever. I had a mentor of mine once said you always want to go into trial being better prepared than the other side, right? Like you're you're gonna outwork them, you're gonna outsmart them, and you're gonna know the record better than they do. And I think that that's really, really important. And so I always think just really spending time with your documents, really knowing the chronology of events, putting together putting together chronology, organizing organizing the materials, having things at your fingertips, having team members who know the record inside and out, so that when a witness says something on the stand that's incorrect or you have the document there to impeach them right away. Like you just you want to you wanna go in there and feel like you have you have the power. To Stephen's point, you don't have there's lots of things outside of your control, but the one thing you can control is how prepared you are. And the more prepared you are, the more control you'll feel that you have. So it's it's it's really like it's a win win situation.
[00:09:03] Erin Brown I think this really harkens back to something Ted we talked about in one of our season three episodes about sort of junior lawyers or sort of more more junior litigators and something that can really give them an edge up over even a really, really senior litigator is the knowledge that they have, like an incredible handle on the record, the documents, the evidence, probably even more so than that really senior person who hasn't maybe spent as much time preparing or has maybe had more team members involved. So it I think it's it's also a way to to maybe lessen the gap between over like an experience gap between you and opposing counsel, potentially, and just make you feel more comfortable and better, better able to tackle the tackle the case. So great tip.
[00:09:48] Ted Brook So just for my benefit, because I love analogies that stretch the comparison. If an appeal or a motion hearing is like a meal, right? You're like prepared a meal and then you show up and you serve it to the judge and you're like, does mine taste better than the other sides? If then a trial is kind of like you're making the meal live in in front of the judge.
[00:10:09] Erin Brown It's not some sort of like live baking show analogy here somewhere.
[00:10:12] Ted Brook It's like a live baking show. I've been watching a lot of live baking show with my wife.
[00:10:16] Erin Brown We can tell that.
[00:10:17] Ted Brook So that's why it's on my mind. And so I could see in that context, if you guys accept that analogy, I could see why you have to do a lot of prep work before you gotta chop your vegetables, you gotta figure out your recipe, because you're doing everything live, right, rather than over the course of maybe months or weeks.
[00:10:34] Erin Brown It's like when you're watching one of those cooking shows, and they're like, Okay, and now we'll add the cheese and they come up with the perfectly prepared, you know, cheese pre-grated in a beautiful, like, you know, gorgeous serving dish when when you're making it in your kitchen, you're gonna be like grating the cheese live. So it's so you know, to prepare for trial, just put your cheese [00:10:51]on the table. [0.2s]
[00:10:51] Ted Brook Do you guys accept that? I mean I don't want to leave that with our listeners if you're like, no, that's a terrible analogy.
[00:10:56] Erin Brown Ted, stop watching baking shows.
[00:10:58] Stephen Taylor No, no, I hear you on the and sort of I've watched a few of those as well. And it seems like there's there's two kind of styles, right? One where they sort of they give you all the ingredients, you're there and you go, which is more like the appeal and the motion. And one where they have the pantry in the back and you sort of gotta pick out everything for it. So a trial is more like that, where you're sort of it's not just the you're making it, you're actually you're quote unquote doing the shopping or whatever it is back in the pantry, picking everything that's gonna go in.
[00:11:27] Erin Brown You might even be like growing your own vegetables in the backyard.
[00:11:31] Tiffany O’Hearn Davies It's theatrical, right? There's a theater to it. And it's not like it's not like a Shakespeare play where every word is planned and it's a script, right? It's not like improv either, where you're just getting up there and weighing it. It's kind of a mixture of both. So you need to sort of have your script, but you need to be able to adjust, right? Like someone throws you that curveball. They're like, oh, and here's the secret ingredient. It's like voila. You're like, okay, what am I gonna do with that? Yeah. So that's like because you're going to have those, you're gonna have those curveballs and you need to be agile and ready to respond. Yeah, I think that's a good analogy. I'll take it.
[00:12:11] Erin Brown Although I don't know, I feel like you threw a competing analogy of like a theatrical performance in there untended. So let's see how it they hold the analogy holds to the rest of the tips. Okay. So tip number one, prepare, prepare, prepare. Tiffany, what is tip number two?
[00:12:27] Tiffany O’Hearn Davies So this is tip number two, it's a form of preparing is check your productions. Before trial, you need to make sure that you've produced all of the documents that you need that are relevant. Not just because you have an obligation to do that, but you need to make sure you've produced everything you need to prove your case. And this might sound obvious, but I have been in a trial where the other side did not do that and unfortunately was unable to prove a component of their case. And you don't want to be the lawyer that's in that situation. And I think document production, the discovery phase of litigation, it's most of our clients' least favorite part of litigation. It's the part that requires your client to be aside from when we get to the trial itself, but leading up to the trial is the part that involves the client the most. Like they have to do the work, they have to go back, they have to dig through their records and they don't always want to do that, or they might not want to produce a document because maybe it has business information that they don't want to share and they they feel what like why do I have to give this to the other side? Is this even relevant? And it's your job as the lawyer to say, actually it is relevant, it's important. And if you notice that key documents are missing, if you if you need to prove damages and you don't have those documents, you need to push your client and say, Look, like I know you have these records, I need you to go and look for them. And if you don't have them, we're gonna have a bit of a problem, right? So just make sure you do that. Just make sure that you have the evidence that you need to prove your case because it's you don't want to be that lawyer who's in that sticky situation.
[00:14:03] Ted Brook Excellent. No, it's a good reminder. Stephen any thoughts on that or do you want to move to the third?
[00:14:09] Stephen Taylor Yeah, I just just I'd add to that, which is, and Tiffany made the point at the end there having the evidence that you need to prove your case, going through that and saying sort of what are the propositions I'm trying to prove, what are the components of what I have that goes to to each of these components and and how am I going to prove it? So on the topic of productions, is this something that I'm gonna have as a business record? And if it's gonna be a business record, making sure that you're following the rules under the Evidence Act, giving the appropriate notice, there's just a bunch of traps for the unwary. And so having sort of a checklist there that you're dealing with in terms of productions, answers to undertakings, business records, so that you know exactly how you're going through and proving your case and using those productions.
[00:15:05] Ted Brook Excellent. Okay. So what's number three? What is your third tip?
[00:15:09] Stephen Taylor Yeah, tip number three. Preparation, preparation, preparation.
[00:15:15] Ted Brook Hey, that's not a tip.
[00:15:17] Stephen Taylor It's tip number one, but it's tip number three too. And I don't say this just as emphasis, but it's actually another component of preparation, because there's the trial preparation you do just in the lead up, being ready to prove your case. But preparation for trial actually starts long, long before that. And you have to be thinking of that as a lawyer. Where when you're going into discoveries, you're preparing for that, you're giving answers to undertaking, you're you're doing your affidavit of documents. All of that is actually a form of trial preparation. When you're doing post discovery transcript summaries, all of those things usually are happening, but years before trial ever even starts. It might be that you're in a case and it ultimately never goes to trial. But taking those steps at the time that they're they're happening and thinking of them as a form of not just sort of a step in the proceeding, but as actually a form of trial preparation is critical to being prepared to prove your case when you finally get to trial.
[00:16:32] Erin Brown So I think if we're taking Ted's baking or cooking show example, I think this is the sort of like you're planting the seeds for the basil that you need to grow next year so that you can then chop it and put it in the pantry and have it ready. It's like those early, early phases of preparing years in advance when you're really thinking strategically about like those long lead items and the strategy for how that how that's going to go into your final product.
[00:16:58] Stephen Taylor Yeah, if we're go we're going further and further down the analogy route, but I'm still there with you.
[00:17:05] Ted Brook Yeah, we I mean like we always try and push it as far as we can, but sometimes that means tipping over into the deep end. I think the listeners are still with us. But like, yeah, you it's not it's not just enough to prepare and prepare and prepare. You also have to prepare. But so Tiffany, let's can you give give me a concrete example of something that would not a client may not necessarily think is included in trial prep, right? Like like let let's make this a little more tangible for people.
[00:17:36] Tiffany O’Hearn Davies Yeah, I mean, I think Stephen gave a couple of good examples, but examinations for discovery, that's an obvious one, I think, right? Examinations are about learning and discovering your case, right? That's one of the main goals is to try to figure out what the other side's case is and what case you need to what evidence you need to prove your case, right? But you're also working on sort of building, you could be building part of your trial record, right? So part of those discovery transcripts might be read into the record at trial, right? You might be trying to [00:18:10]elicit admissions [0.0s] from the other side that you can use at trial. The other side is going to be trying to do the same thing for your client. So examinations for discovery can happen well in advance of trial, but it's it's something that actually could be trial evidence. So I mean, that's a that's an obvious example that comes to mind.
[00:18:27] Ted Brook Yeah, identifying that, thinking about it, obtaining it, and then doing your sort of summaries and so on and so forth.
[00:18:34] Erin Brown Okay, so tip three is even more preparation. So Tiffany, what is tip four?
[00:18:40] Tiffany O’Hearn Davies Guess what? It's another kind of preparation. Okay. So give your witnesses the time they need. So this really has to do with witness prep, which we talked about and touched on earlier. Stephen kind of touched on this when he was talking about the preparation the first time around. But it really can't be understated how important it is to have your witnesses prepared because trials are all about the witnesses. The witnesses are the vehicle through which your evidence gets before the judge. And if your witnesses are not prepared, then your evidence is not going to go in the way that you want it to. You might not even get the evidence in that you want before the judge. So you really need to make sure that your witnesses are prepared. And witness preparation is time consuming. It's not uncommon for witnesses to push back and say, like, I think I'm ready. I'm good. Like I know this. I don't, why do I don't want to do it this anymore? They've lived the facts a lot of the time and they feel like this is my life. I can answer these questions. But it's one thing to know the story, and it's another thing to be able to tell it, right? And so for instance, direct examination, we know that that you have to be asking open-ended questions. And it's actually really hard to do an effective direct examination and to have your witness tell their story in a coherent and chronological or effective way when you're just asking them open-ended questions. So you need to prepare the witness for that. You need to practice asking them those questions. Go through your direct examination with them. You get an answer back and try to help them understand what evidence you were trying to elicit with your question. You might need to modify your questions to try to get the evidence you want. And then you need to prepare them for cross as well. And that's a totally different experience. And so I always think it's a really good idea to do a couple practice cross-exams with your with your witnesses. Maybe bring in another lawyer from the firm, someone they're not familiar with, someone who's gonna maybe make them uncomfortable or has a different style than you, just to get them prepared for the stress of of cross-examination. And then also just make sure your witnesses know the evidence, right? Like so many people think they know the facts and they, but our memories are not great. Like that's just that's the reality of being human. And so make sure that you spend time going over. If you're going to ask your witness about a document, make sure they've read it. Make sure that they know what the document says. Make sure that they're, they know what the sticky points are and that they've practiced responding to them. Like you don't want, you don't want your witness to be on the stand and be surprised and feel like they've been that they're underprepared. That's the worst thing ever is to have a witness walk away from testifying, feeling like you didn't prepare them. You don't want that. So preparation, preparation, preparation.
[00:21:43] Erin Brown Even in your years of practice, have you seen the effects of a lack of preparation of witnesses? Like do you have any anecdotes of times or where you've seen where you've thought, okay, that witness was really not prepared and it is seriously hurt that party's case.
[00:21:58] Stephen Taylor I mean not in any cases I've advanced, but certainly I've seen it on the other side from time to time where things like the the witness clearly hadn't reviewed, for example, their own discovery evidence before the trial. And they get asked questions, and it's sort of two years later, and now they're giving completely different answers. And then on cross-examination, it just looks it looks off. And I don't even think the la the the witnesses are intentionally lying or deceiving, but it it almost makes it look like they are, because it's you said X today. Well, let's look what you said on discovery. Something completely different. And once or twice you you could sort of you can explain around it, but if you're able to do it four or five, six times with a witness, it just their credibility is shot and their testimony is useless.
[00:22:58] Ted Brook And when you talk about sort of giving witnesses that time, you can't just this isn't just like the week before trial starts, I'm gonna sit down with them and practice questions. Right? Like you've got a it's a lot more time than than you would expect.
[00:23:14] Tiffany O’Hearn Davies Yeah, it's well in advance and it's during trial, right? I mean, the preparation continues during trial. Well if you're defending the case, right, the plaintiffs presenting their case and you can be you're in court all day and then maybe in the evenings you're getting your continuing to prep your up witnesses and getting them ready for when it's your turn. I think it it's lot of work, right? It's a lot of work for everyone involved. And the sooner you can get started and the more time you can set aside for it, the better.
[00:23:46] Erin Brown Okay, so tip number four was prepare your witnesses, or to not use the word prepare in a third tip, maybe give your witnesses the time they need. Stephen, tip number five.
[00:23:58] Stephen Taylor Okay, tip number five, I would say is get ready to object. Objections at trial are some of the trickiest and most complicated issues that you'll deal with at trial. And part of the issue with objections is that if you are not doing a large number of trials, in effect, if you're not part of the criminal bar, you're not gonna have a lot of opportunity to practice objections because it's something that doesn't come up regularly in any other form of litigation. And so being very familiar with the rules of evidence, the basis of objections, if you're gonna object to something being hearsay, that you're understanding the difference between an appropriate use of evidence that may not be direct evidence, but if you're not proffering it for the the truth of the contents, it's fine. But if your witness is gonna say so-and-so told me this, and you're trying to use it as evidence that that thing is actually true, that it actually happened, that you have hearsay problems, Brown and Dunn objections, that we could have a whole series of podcasts on evidence act or evidence objections, and just making sure that that you're ready for it, that you are in fact making the objections, that you're not sitting there passively, so that you're keeping improper evidence out. And if people are objecting to your evidence, that you're appropriately responding and making sure you're ready to defend your evidence so that evidence you need to get in isn't getting excluded.
[00:25:49] Ted Brook Yeah, or or pivot, right? Depending on what maybe the objections fair, right? But if you don't know the potential objections and the sort of evidence and where you think they might come up, you'll you'll be caught off your feet.
[00:26:01] Erin Brown Ted, it sounds like we might have a whole episode here on objections. So listeners, send us a message if you want us to do a whole episode on objections because I think Stephen just volunteered to do that.
[00:26:11] Ted Brook Yeah. Tiffany, what what do you think makes like a a good objection where the judge sort of says, yep, fair, or an objection where the judge just like rolls their eyes and says, like, stop, stop interrupting the flow. Like I'm getting sick of you. Or is there no way to tell? Right. You just kind of have to take the risk.
[00:26:28] Tiffany O’Hearn Davies I don't I think if the if it's a valid objection, then you should be able to make the objection. Like a a valid objection is a good objection. I just think you do need to, you do need to read your judge, right? So if you have a we've received received this tip from a really great colleague of ours that if you test the waters a bit, make, you know, the first time that there's some inappropriate use of hearsay, object and see how the judge responds, right? Does the judge say, you know what, like I'll just deal with this later in in closing submissions, or send is this judge sending a message that they don't really want to hear a bunch of objections? If so, take that and don't just, you know, don't proceed to object every five minutes. But if the judge is receptive to it and is taking those objections seriously and is making those rulings in the moment, then you know, go ahead, right? And but at the end of the day, if you think that there is a valid reason to object and you don't want that evidence in, then you should object. Even if your judge is doesn't seem to like objections, you need to object if you think you need to object. But there is a component, I think, of reading the room and assessing how the judge is responding to the objections.
[00:27:43] Ted Brook Very, very good point. All right. Well, keeping with you, Tiffany, what is the sixth tip that you guys have for winning trials?
[00:27:55] Tiffany O’Hearn Davies My sixth tip is to consider your tone. And what I mean by this is trials are battles. We, to Erin's point earlier, we we all love a good litigation drama suits or I grew up watching Matlock. And it's it's tempting when you're, especially in cross-examination, to just fall into a very aggressive style, right, to want to show your client that you're tough and you're confident, etc. But you really do need to consider your tone. And this isn't just in examining witnesses, it's throughout the trial. Because it's not always appropriate. Sometimes you'll have a witness that's you need to ask yourself, like, is this a sympathetic witness, right? Like, even though you might see this witness as the bad guy, even if you're trying to prove that this person did something wrong, if they're gonna come across on as like some cute little old man who's dedicated their life to doing good things, but has done something wrong, that's a little bit different than someone who's spent their life being a weasel, right? And so you you need to think about how you approach the witness, because you want sometimes if you're overly aggressive when it's inappropriate to be so, the judge isn't gonna like that. But you on the flip side, you're going to have witnesses that you need to be in more assertive with. So for instance, if you had a witness at Discovery who, you know, wasn't answering questions or was evasive or maybe was a bit argumentative with you. Think about that and and have that inform your strategy, right? If if you want to show that this person's a hothead and that they have a tendency to blow up, I've I've done a lot of wrongful dismissal cases and people who have been terminated because they have really bad workplace behavior. And sometimes it's kind of fun and it's fun and also effective to get those people going on the stand and show like, look how easy this person is to, you know, look how quickly this person is yelling at me. Look how easy it is to get them going, because it sends a strong message to the judge. If if they're behaving like this on the stand, then what are they like in the workplace, for instance? So you got to just read the room again and consider what what's going to work best for that particular witness.
[00:30:10] Stephen Taylor So, my view is you have to be very, you can't, it's not a one-size-fits-all kind of approach. And trials and cross-examination, they're a bit theatrical, right? You kind of have to step into a role a little bit. It's not the same as sort of everyday speech. And so, as part of that theatrics, you're you're adjusting what you're doing for whatever the scene is you're laying out. So if this is if the witness is somebody who you want to get to agree with you, and frankly, who the wit the judge is gonna potentially see as credible, and you're not taking an aggressive posture, it doesn't fit the scene for you then to go in and be hard-hitting. You should never raise your voice, but but you know, more pointed with them versus a witness who you're trying to show as somebody unreasonable, who you're gonna have those pointed questions with, where you're gonna take an aggressive tone. It's what fits the theory of your case, what fits this the scene that you're trying to lay out for the trier of fact.
[00:31:26] Erin Brown So tip six, consider your tone. Stephen, what is tip seven?
[00:31:33] Stephen Taylor So tip number seven is more isn't always better. And what I mean by that is when you're presenting your case, you have to think about what the judge can actually reasonably grapple with. What are the highlights of the case? What are the key legal issues? And if you're going into your case saying there are eight issues for you to decide, you're probably in trouble. That is required on that number of issues. What are the key facts? What are the key legal points? And if you get too into the weeds, you're you're wasting your time on issues that are not going to be central to the determination. You really have to think about your strategy and what are the key points you need to prove and hammer those home. What are the what are the key things in dispute and hammer those home and and not go issue after issue after issue. So there might you might be able to identify eight legal issues in your case, but then you have to think about those eight and say, really, are all of these critical? Can I pick four of these that I'm gonna anchor my case around and present my case around and show a bit of judgment and strategy in what I'm gonna present to the judge.
[00:33:13] Erin Brown And I think it probably to a certain extent goes back to the earlier tip on preparation, right? Because part of really honing in on like the key legal issue is having spent all of that time meticulously analyzing the legal issues and the evidence and really distilling it down to like the the major point, right?
[00:33:32] Stephen Taylor I mean you have sort of called me out on a little bit and I'll admit basically all my tips are a form of preparation. I started with it's gonna be a constant theme throughout. It's a fair comment, but there's different kinds of preparation.
[00:33:47] Tiffany O’Hearn Davies Sometimes like preparing really well, you know, the case so well. So you know all of the facts. And it's really tempting to just want to share it all. Know your case, know it really well, know all of the evidence, but then really exercise some restraint and ask yourself, like, what does the judge want to hear? The judge it doesn't want to hear it all. They want a story that's sort of easy to understand, and they want to know the key, the key facts, the key evidence, and you have to you have to exercise that restraint and it might mean leaving out some stuff.
[00:34:24] Ted Brook So Tiffany, what is tip number eight for us?
[00:34:29] Tiffany O’Hearn Davies Tip number eight is it's okay to pause. And what I mean by this is that and it's a [00:34:35]tipple, [0.0s] it's a tip that applies in a variety of circumstances. And what I mean is that when you're examining witnesses, when you're making oral submissions, when you're responding to questions from the judge, it's okay to pause. And this might sound obvious, but you know, there's gonna be a lot of times when a pause is going to serve you really well. And it's just taking a second to think about the answer to the judge's question before answering it. Maybe you're examining a witness and you're in a cross exam and things are going back and forth, you know, really quickly, and the witness says something and a little light goes off on your brain, and you think, oh, I think that that I think that was a lie, or I think that that's inaccurate. Just pause for a second, turn to your colleague, get a gut check. Was that right? Look for that document that you want to put to the witness. I just think that it's because going back to the what's different about a trial versus other types of advocacy, there's something about being in the court. It's it is nerve racking, it is exciting. And I think sometimes we can just sort of get on a roll and for whatever reason we want to just keep going and we're free forward right. Yeah.
[00:35:53] Erin Brown We often find, especially in this big imposing room with a lot of people there, a lot of people waiting for you, we feel this natural awkwardness to having a a moment of silence.
[00:36:03] Tiffany O’Hearn Davies But the record, the transcript's not gonna show that pause. And I can guarantee you the pause is probably not as awkward as you think it is. And I think it's better to pause and get in the evidence that you want, elicit the admission you want, answer the question correctly, than it is to just skip by. I mean, this recent trial I was in, there was a a number of lawyers, a number of really, really skilled lawyers on this trial. And I think I saw pauses used really effectively by some lawyers and others I think should have paused. And I saw this happen a lot in cross, where the lawyer maybe wanted to put a document to the witness and they didn't have it. So they said, Well, I'll come back to this later. And then they didn't.
[00:36:49] Ted Brook But it's like you're in charge. You're at the podium. Everyone's gonna wait just like this is your time. I get it. Sometimes there you you might be rushed, right? But from a time perspective, but most situations everyone's gonna wait for you.
[00:37:04] Tiffany O’Hearn Davies Yeah, I mean you obviously don't wanna be breaking it up too much, but yeah.
[00:37:08] Erin Brown I've also seen and and curious your views on this, because my experience tends to be more from tribunal hearings, for example. But what about if you really do, if you think you need a couple of minutes, a longer pause to really go over your notes or consider something? What do you think about saying I just want to, I just need to consult with my colleague for a second or just give me a moment, I'm gonna check my notes. Like, is that a strategy that you recommend or that you see employed, or do you think you just sort of say nothing and do what you need to do?
[00:37:35] Tiffany O’Hearn Davies Yeah, definitely. I definitely think you can do that and you should do that. I think that that's totally normal and you shouldn't be afraid to do that actually. You can even depending on the circumstances, you could even ask for a a break. I mean, you have to think about what the you're not gonna be asking for breaks every five minutes because you're, I mean, having a moment.
[00:37:55] Ted Brook Because you're not prepared, right? That's why you have the other [00:37:58]two. [0.0s]
[00:38:01] Tiffany O’Hearn Davies That''s a different. That's a different situation. Most certainly during I was in a ten week trial and I can't can't tell you the number of times that someone said, just one moment, Your Honor, I just need to consult with my colleague, and I think that the people who did that did a better job than the people who didn't, in in my opinion.
[00:38:19] Erin Brown Okay, Stephen, do you wanna add anything or should we go on to hotly anticipated tip number nine?
[00:38:26] Stephen Taylor I think Tiffany covered most of the ground there, so I'm happy to go to tip number nine.
[00:38:30] Erin Brown Tip number eight, let me set it up, Stephen.
[00:38:33] Stephen Taylor Sorry, sorry.
[00:38:35] Erin Brown Tip number eight was it's okay to pause. So Stephen, tip number nine, give it to us.
[00:38:41] Stephen Taylor So tip number nine is consider your alternatives. I know we're talking about preparing for trial here and trial tips. But before you go to a trial, you have to think about whether trial is actually the best way of dealing with your case. Is a different procedure or revised procedure more appropriate? And it could be you can have hybrid trials, for example, where instead of having examinations in chief, the parties are agreeing to affidavits in advance, and that that is going to serve as examination in chief. And actually, earlier in this year, Ted and I did a bit of a roadshow on proposed changes to the rules of civil procedure. And then that's one of the general proposals under consideration right now is whether, in fact, as a matter of course, you're going to start having evidence in a chief in advance rather than having the norm being witnesses giving evidence at trial. But it's something available to lawyers today and is something that should be considered either as a time-saving mechanism, or because there may be issues of that are less credibility-driven where you don't really need the examinations in chief. And it allows you to streamline your hearing. But apart from the sort of the tweaks you can do to the trial itself, considering it is there a way I can cut through the trial with a summary judgment motion. Or frankly, one of the alternatives too you have to be considering into the lead up to trial is how is this trial gonna go? And should I be recommending a settlement to my client to avoid the trial altogether? These are all factors that you have to be considering as you head towards trial. Lots of matters settle sort of at the courthouse steps. And it's because people are taking these sorts of considerations and are not just stumbling down the path towards trial or bust.
[00:40:56] Ted Brook Great, great. Well, why don't you close this off, Tiffany? What is the tenth and final tip that you guys have for us?
[00:41:03] Tiffany O’Hearn Davies So the tenth and final tip is to practice with civility. And we touched on this before, but you know, it goes without saying that we're officers of the court. We should be carrying ourselves out in a respectful and professional manner. It's always important to try to be polite and as civil as possible with your with your opposing counsel. But all it's not just the right thing to do, but it's also a really important thing to do because I think it really increases your credibility with the judge. The judge doesn't want to see lawyers bickering and engaging in sharp practice. Judges want the parties to work together as much as they can to move the trial forward in an efficient way. And I think that you really it serves you well to do that, right? So obviously you're going to put up a fight when you need to put up a fight. You're not going to just them, this isn't I'm not talking about being a pushover, but I do think that it's important that you're demonstrating that you are a reasonable person. And because judges trust reasonable people. And so it's actually in your client's interest to come across as a reasonable and professional person. So
[00:42:20] Ted Brook It's part of the advocacy, right?
[00:42:22] Tiffany O’Hearn Davies Yeah, exactly.
[00:42:23] Ted Brook It's part of the representation. That's a really, really good point.
[00:42:27] Erin Brown Yeah. And even if you are, you know, taking an a more aggressive position, there's still a way that you can do that civilly, right? It's all about going to the earlier point, the tone that you're using, you know, how respectful you're being in your communications, you can hold the line and take a firm position for your client while doing while doing so in a very respectful, civil manner as an officer of the court, right? So not to confuse those two those two concepts, I guess.
[00:42:53] Tiffany O’Hearn Davies And you can explain to your client why you're doing those things too, right? Like I think a lot of it is about client management. So a lot of times at the beginning of the day at trial, you'll have some housekeeping items, right? Like maybe you and opposing counsel have talked about schedule for witnesses, or you've talked about there's a motion in the in the trial, and you've you've talked about timelines for producing or make giving submissions or something like that. And you kind of are getting up there and there's sort of a a friendly back conversation that's happening. And I think that just explaining to your client what why you're talking to their side, what you're talking to them about, and why it's important that you appear reasonable, why it's important that you are cooperative on certain things. And then your client won't they'll feel comfortable with that and they'll trust your judgment. So I think that that's just it's just part of the client management. And because we we all learn about trials mostly from watching TV.
[00:43:47] Erin Brown Which as we've established is not reflective.
[00:43:51] Tiffany O’Hearn Davies Not reflective of reality a lot of the time. Yeah.
[00:43:54] Ted Brook Okay. Well, thank you both for these fantastic tips. Erin and I have learned a lot and I think our listeners have too.
[00:44:01] Tiffany O’Hearn Davies It's our pleasure. Thanks for having us.
[00:44:05] Erin Brown That that was a really interesting discussion. Did you learn anything from those ten tips that you might employ in your next trial?
[00:44:11] Ted Brook You know what? I'm gonna take to heart what Tiffany said about not being afraid to pause and just sort of like own the moment. You're you're running a cross examination or you're making submissions. If something happens, stop, take the time. People will wait, but don't just let the momentum drive you forward. Yeah, definitely.
[00:44:32] Erin Brown No, I think that's a good one.
[00:44:33] Ted Brook I don't know what about you? Is there anything that that you've learned that that maybe you didn't know before?
[00:44:38] Erin Brown I think it's more just reflecting on Stephen's discussion of considering alternatives to trial or different types of trial and hybrids. I was actually making some notes on some potential strategies that I want to consider for some for some upcoming matters. So I think that those are just really good practical reminders that there is flexibility baked into these processes and some of that early strategic preparation and thinking about different alternatives and models to trial is something we should all be doing.
[00:45:04] Ted Brook Awesome. Good. Good stuff. Listeners, I hope you enjoyed this episode with Stephen Taylor and Tiffany O'Hearn Davies. Feel free to to subscribe to Disputed wherever you get your podcasts.
