The changing family law trial

Trial time is a precious and valuable resource.It should be viewed that way by litigants and their lawyers, and by the judgeswho both schedule trials and work to resolve cases without trials. It washeartening to see the Ontario Court of Appeal recently uphold a Superior Courtjudge's decision to refuse to grant trial time (relying on Rule 2(3), of theFamily Law Rules) for a separating couple arguing over the ownership of theirpet. This was the purpose of Rule 2, the prime directive.

The family law trial is evolving, just as the family law case has evolved dramatically in recent years. There is pressure on lawyers and parties to resolve all issues in dispute without a trial and, if that cannot be done, to settle as many issues as possible and focus the trial on those remaining issues that are unsolvable by any other means (again, Rule 2), and to make the trial as short as possible.

This can and is being done in many ways. Lawyers use the request to admit (Rule 22) to gain admissions on as many uncontroverted facts — dates, addresses, incomes, etc. — as possible, which will become agreed facts.

Prepare a detailed statement of agreed facts for use at trial. Put as many facts as possible in the first version. If the other side cannot agree to some, they can delete them. At least there will be some facts remaining as agreed. This effort can result in a detailed agreed statement of facts that saves as much as half a day of evidence.

Whether the parties agree to a statement of agreed facts or not, the material prepared can also be used in a trial opening statement, which should contain the essential facts (including background set out in the agreed statement), the facts the party intends to prove, the witnesses who will prove them, the legal issues raised, and the orders the party is seeking.

Make an oral opening statement, but it is also worthwhile to write the opening statement down. This is a special kind of advocacy, and an opportunity that should not be missed. Do not underestimate the advantage of the trial judge having in writing your statement of the disputed issues and your version of how those issues should be resolved. If the opening is properly done, it can also be the foundation of your closing.

Nothing is more efficient and effective at reducing trial time than affidavits for evidence in chief and the use of expert reports as evidence in chief.

The practice of using affidavits for the evidence in chief of witnesses (Rule 23 (20)) is more widespread and less controversial in child protection cases than in family law trials of separating spouses. It is possible for the Children's Aid Society to put the entire case in chief to the court on paper. I did two trials recently acting for an agency where the entire case in chief was on paper through affidavits and expert reports. It shortened the trial time dramatically.

A spouse's lawyer in a family law case may want that party to testify in chief orally. But it is still possible to put in other witnesses' evidence by affidavit. The character/collateral witness in a custody trial is a good example of where this might be useful.

There are advantages to presenting evidence as affidavits. The lawyer completely controls the testimony — nothing extraneous gets in, and the flow is organized and accessible (a feat not possible in oral testimony). The cross-examination is also (one hopes) better organized, shorter, and more focused, as the opposing lawyer has the opportunity to prepare fully before trial. The lawyer presenting this evidence should insist that the judge takes a break to read the affidavits before the cross-examination begins.

If the expert report is solid, filing the written document and not having the expert give oral evidence is almost always the best choice, for much the same reasons as the affidavit. The other side may or may not cross-examine on the report. If there is a cross-examination, the lawyer presenting the expert report should, again, insist the judge reads the report before the cross-examination begins. The salient portions of the report can be highlighted in the trial closing argument.

The cumulative effect of the use of all these tactics can result in a dramatic reduction in the length of a trial.

There is no question that relying on these tools requires more work for counsel in trial preparation. But it has to be done anyway: this approach merely shifts some of the work that would have been done during the trial to before it starts. The trial runs more efficiently, counsel is calmer (fewer surprises!) and better prepared, and the trial is much shorter. Parties will also face lower legal fees. Judges love it. Everyone is happy.

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