Jason Betts, Partner and Chris Lisica, Senior Associate at Herbert Smith Freehills, emphasises the importance for litigators to be thoroughly prepared for trial by sharing a brief overview of key elements in litigation that require the most attention and thought. Jason will be sharing more insights and tips in preparing for trial at The Civil Litigator’s Toolkit: Advocacy, Trial & Settlement on Thursday 19 November 2020.
Any seasoned litigator will tell you that trial preparation begins from the moment a proceeding is commenced or; in some instances, trial preparation begins when proceedings are first threatened. Failing to develop a strategic pathway towards trial from the outset, or limiting trial preparation in the hope the matter might settle, leads to suboptimal outcomes at all stages of the interlocutory process.
With rules varying between jurisdictions, and courts continuing to develop novel approaches to case management for complex litigation, there is no one-size-fits-all approach to trial preparation. That being said, there are a number of elements common to most litigation which require attention and tactical thought. We provide a brief overview of those elements below.
The early stages (establishing a plan and strategy)
The early stages of any proceeding are perhaps the most important in its lifecycle. This is when significant strategic decisions are made, such as which lay and expert witnesses may be in play; what counsel to retain for the life of the matter; and what case theory will most resonate. This is also when a fact-finding exercise begins, such as the collection and review of relevant documents, to understand the preliminary merits of a client’s case, which will inform the broader strategy.
There are a number of initial steps which may be taken depending on the nature of the client and the proceeding. For example, for a corporate client, the board and/or senior management may require a preliminary analysis of the strength of claims made and the strategy for defending those claims. If the client has a number of external stakeholders, they may need an external communications plan or Q&A program to guide public comments in relation to the proceeding. For a listed entity, consideration may need to be given to whether a statement should be made to the market in accordance with applicable continuous disclosure obligations. Further, an appropriate document management protocol is useful for helping clients set parameters around the creation of potentially discoverable documents and maintaining legal professional privilege in communications.
A matter strategy should always be formulated on the basis that the proceeding may go to trial. This will ensure that a client is put in the best possible position during any pre-trial settlement negotiations and, if it does not settle, will have covered all necessary pre-trial procedures and be prepared and able to meet an accelerated trial timetable. An effective way to achieve this is to work backwards from the likely trial date, and set milestones for completion of key pre-trial tasks.
Planning witness testimony
Witness testimony often comprises evidence from lay and expert witnesses. Depending on the type of litigation, a client may require both, and it is necessary to work with the counsel team from an early stage to identify what evidence is necessary and who will fill those roles.
Lay witnesses can fill gaps in, and will explain and give life to, documentary evidence. Therefore, it is critically important from an early stage to commence a careful review of relevant documents and, potentially, a detailed chronology or matrix to understand where lay and expert evidence may assist. In relation to expert witnesses, it is important to retain someone with the appropriate training, study or experience so that their evidence will be admissible at trial.
Providing witnesses with appropriate documents and proactively organising conferences to discuss progress on draft statements, affidavits or reports is crucial to complying with court-ordered timetables. However, extreme care must be taken to never influence a witnesses’ evidence during the preparation process. In the case of experts, while a lawyer may assist to ensure that a report is in an admissible form, the evidence must remain entirely the views and words of the expert.
There are a number of processes available to help a client obtain information relevant to the case, and to narrow the issues in dispute in the proceeding. In this regard, subpoenas and notices to produce are useful tools in a litigator’s toolkit.
A subpoena or notice to produce documents gives a client the ability to seek information and documents from other or third parties which may assist the client’s case or hurt the case of an opponent at trial. When drafting these notices, it is important to keep the request relevant and specific, and to avoid making it unduly burdensome on the receiving party.
A less commonly used but equally useful tool is a notice to admit facts. These notices can be issued to extract admissions from another party which help to narrow the factual issues in dispute in the proceeding and give a client greater certainty about key factual issues at trial. When drafting these notices, it is important to ensure that it is confined to facts, and not inferences drawn from other facts or intertwined with matters of law.
Developing a case theory
In the process of obtaining evidence, a client should begin to develop its case theory as quickly as possible. This is a client’s outline of why it should win the case and why its opponent should lose. The case theory needs to be tested against the facts, the legal issues and the client’s interests to ensure it is sound and most likely to achieve success at trial. It will continue to evolve as the matter progresses and new facts come to light, and will assist the client to identify the core factual propositions which must be proven in order to be successful at trial.
The lead up to trial
The lead up to trial is one of the most intense periods of the proceeding.
Common directions made by judges in the lead up to trial include orders relating to the notification of objections and the preparation of tender bundles. In relation to objections, work with counsel from an early stage to identify those parts of an opponent’s evidence which may be inadmissible. This can be on a number of grounds, including relevance and hearsay.
Tender bundles are made up of the documents which a client will rely on during the trial, and include those documents which will be tendered in evidence or used in cross-examination. It is important to identify and flag these documents during the course of the proceeding so that they are readily available by the time they are needed to prepare the tender bundle.
In respect of lay and expert witnesses, preparation in the lead up to trial is key. It is imperative to ensure that witnesses know their evidence, and multiple mock cross-examination sessions should be arranged with the witnesses and counsel. If a witness’ evidence is particularly complex, consider preparing aides-memoire to assist them remember the key elements of their evidence. Further, if witnesses are unfamiliar with the court room, consider showing them around before they are required to give evidence, to make the situation less daunting.
The preparation of opening submissions is an opportunity to distil all of the efforts in preparing for trial into a few pages. Remember that the audience for opening submissions in a commercial case is the judge, and their purpose should be to persuade the judge that the client’s case should prevail. It is therefore important to establish rapport and trust with the Court by accurately identifying and attempting to clarify the key issues and documents in dispute, faithfully presenting the facts, and fairly dealing with adverse matters. It is also important to work closely with the counsel team when drafting written opening submissions, as they will likely form the foundation for an oral opening. The most effective written submissions are those which are written in plain English, well-structured and short.
Remember that by failing to prepare, you are preparing to fail. From the moment a lawyer is instructed to act in a dispute, or when litigation is threatened against a client, the assumption should be that the matter may go to trial. Regardless of the jurisdiction, and irrespective of the subject matter of the proceeding, a well thought-out strategy, a comprehensive plan for lay and expert evidence, strategic use of interlocutory processes, the development of a sound case theory, and being prepared in the lead up to trial will give a client the best chance of achieving a favourable outcome.
Jason Betts is an Australian disputes partner specialising in class action litigation and major regulatory investigations.
Jason is widely regarded as one of Australia’s leading class action, corporate regulatory and product liability specialists. He has over 20 years’ of litigation experience and has defended the largest class action litigation (particularly shareholder claims), regulatory investigations and prosecutions and corporate distress liability issues in the Australian market.
Jason has also acted in the majority of Australia’s largest class actions, including major securities and product liability litigation. He lead the defence of one of Australia’s largest ever product liability class action trials and acted for the defendant in the seminal Australian decision on third party litigation funding in Australia – Fostif.
Regularly called upon by the press to comment on class actions issues, Jason is co-author of the leading class actions text book in the country, “Class Actions in Australia”.