PRACTICAL TRAINING FOR TIAIAL OF CIVIL CASES
by A. L. Stein, Q.C.*
“‘It is said that a case is von or lost in a lawyer’s office, not in a court room. To the extent
that thorough preparation is more important than brilliant court room forensics, this is a
correct statement.’
Few “fourth-year”
law students of our local universities approach the
practice of their chosen profession with anything like a realistic picture of their
first few years of daily activity. Yet it is in these uncertain, difficult, and
formative years, that a newly-graduated lawyer frequently determines his
future career.
In this period, mistakes, disappointments, frustrations and,
finally, economic necessity, often may terminate what otherwise might have
been an interesting and successful practice. And nowhere is this more evident
than amongst those young lawyers who, with pre-conceived images of clever
exchanges with other brilliant barristers, “and/or” stirring addresses to judges
and juries aspire to a speedy (and prosperous) eminence at the Bar. But, as the
student, after graduation and left to his own resources, slowly discovers for
himself, this lofty aspiration may never be realized by the existing system,
literally speaking, of “trial and error”.
To nearly all students, indentured with an established office during their
last year of legal education, this year is their first one of practical training.
Most of these indentured students seem prepared –
in fact, almost too much
so –
to assist a senior member of the firm to which they have become attached,
in the drafting of legal arguments, briefs, and legal research. Unfortunately,
however, at this point in their respective careers, this is where their services are
least required. Nor is this the case only during a student’s first year of practical
experience in a law office but, also, in many instances, during the first several
years of his practice in the profession.
On the other hand, however, to most of the legal firms which have sought,
and obtained, the services of fourth-year law students, or of recently-graduated
lawyers, of average, better-than-average, and even top-grade ability, their
experience has shown that generally these students, or lawyers, are inadequately,
if not entirely, untrained in the preparation of a civil case for trial. Yet it is
in this area of work that the services of students and young lawyers are most
sought after by senior members of the Bar.
In a foreword to Professor Robert E. Keeton’s book entitled Trial Tactics
and Methods, Dean Robert G. Storey, of the Southern Methodist University
Law School, points out –
*Of the Bar of Montreal.
5Biskind, Elliott L., in preface of How to Prtpare a Case for Trial (1954) pp. vii, viii.
McGILL LAW JOURNAL
[Vol. 7
“A recurring controversy in the legal profession in recent years centers around the question
of whether the law schools are adequatey preparing students for the practice of law. The
charge is made that law school graduates enter the profession without the practical knowledge
necessary to represent clients. To this the law schools reply that while they provide some
practical training, they cannot turn out finished lawyers and that this practical experience
must, for the most part, be gained by the young graduates after they enter the law office.
While I am aware that a number of law schools are doing more in this field than seems to be
generally appreciated by the Bar, I feel that most schools could do more than they have done
or are now doing in this respect. At the same time I have come to the conclusion that the
ultimate solution probably lies in a period of internship of applied legal training to bridge
the gap between law school and the practice.’ 2
Obviously, it was to supply this “period of internship of applied legal
training” that the “fourth-year” indentureship with a law office was established
in this locality. Yet the practical instruction which :s required, cannot, save
in very rare cases, be obtained during this last year of legal training and
indentureship with a law office. Firstly, one must realize that the “fourth-year”
student must acquire this training and experience on a part-time daily basis in
a period of approximately six months, from about September to the following
January; since immediately thereafter, the student must devote himself entirely
to the task of preparation and study for the Bar examinations in June. Moreover,
the student still follows a number of lectures during his fourth year, usually in
In
the afternoon, and must maintain his scholastic standing in the faculty.
addition, the student must also learn the rudiments of an unfamiliar law office
routine; the many intricacies of court procedure; how to obtain and file legal
proceedings, both ordinary and extraordinary; and acquire a working ac-
quaintanceship with courthouse officials and their deputies, and learn their
functions in relation to the lawyers’ work. If, added to the foregoing, the
student is permitted also to argue a few minor motions or other proceedings in
the Practice Court, or in some of the other lower Courts, which he may enter,
in the terms of a well-worn legal phrase, –
“then, and in such event”, –
the student has realized as much, as could be hoped for in the way of practical
training and experience during the indentureship.
Desirable as this experience gained by the student may be, there remains,
nonetheless, an area of practical legal training which could prepare the student
and the novice lawyer for the every-day type of civil case which he will en-
counter most frequently during his first years. This essential part of the student’s
practical training has been either underestimated, or entirely overlooked. For
to know – with some experience and confidence – how to prepare a civil case
from its beginnings until the day of trial –
is a prerequisite for the lawyer
embarking on his career. Without such knowledge and the proper preparation,
on that nervous, exciting morning when he enters into legal combat with a
learned and usually much more experienced adversary, there is little hope for
judgment in his client’s favour in the unequal contest called a trial. Often at
this point, the die is already cast and neither brilliant examination of witnesses,
2Keeton, Robert E., Trial Tactics and Methods, Foreword at p. vii.
No. 3]
TRAINING FOR TRIAL
nor learned argument of the attorney, will save the position of the client and
his case.
But there is more to this unfavourable picture. Not only has the new
practitioner the disadvantage of an experienced adversary, but further handicaps
resulting from the fact that this opponent may have been assisted by specialists
in the investigation of the facts and examination of witnesses preparatory to
trial. This is especially true where the litigation concerns a negligence or
accident case, and when the defendant is represented by an insurance company
or in cases where the defendant is a large corporation. In such instances, an
experienced and highly specialized staff of trained investigators immediately
set out to verify all facts relating to the accident, interview the witnesses,
obtain photographs and other evidence, and finally, submit a written report
to assist the defendant’s attorney in the preparation of the defence. Often,
too, these experts have interviewed, and even obtained a written statement from
the client of the less experienced attorney. In such circumstances, is the graduate
student trained to enter into his profession as a barrister?
Consequently, it is to remedy this apparent “lacuna” in legal training that
the writer would focus special attention. To this end, a course of instruction
or series of lectures could be given to the student during his last year or two,
which would deal with the practical preparation of a civil case for trial. Such
a course or series of lectures could be given by one or more experienced and
practicing trial lawyers – who would deal with a number of topics conforming
more or less to the several steps or stages of development of a routine trial
case from its inception (or first contact with the client) to the day of trial on
the merits of the case. This practical course of lectures and instruction could
comprise the following list of subjects, suitably developed and expanded by
appropriate examples in actual or hypothetical cases, as follows:
1. THE PROBMS OP PREPARATION
priority of
lter development of case -changes
facts’ or “law” investigation in early preparation –
in jurisprudence uring pendency of case.
review in relation to
2. MEETING AND INTERViEWING THE CLIENT
where and how – written mandate – when advisable – obtaining the client’s story –
critical examination.
3. MrTo FOR INvESTIGAnoN Or FAcTs
use of your client –
special investigators – or services of lawyer.
4. ExAmIATIOS OP WITNEssS AND DETERmiNATioN or THE FAcTs
dealing with witnesses – critical examination – obtaining written statements.
5. TYrs OF DEMONSTRAT VE EvsEmcE
documents, physical evidence –
of.scene – physical condition of client and personal injuries.
identity of actors and objects – physical surroundings
6. VMwING THE SCENE OR LOCALE TO wHICH FAcTs ARE RELATED
photographs of scene and objects involved – when advisable and how to be used at trial –
engaging expert assistance when necessary and how to be used.
7. ENGAGING MEDICaL EXPERTS
arranging examinations –
reports when necessary –
and how to be used.
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8. EVALUATiON OF DAMAGES
direct and remote –
incapacity,
temporary and permanent – partial and total – medical expertise in relation to damages
–
future treatments and operations – damages in case of decease.
exaggerated claims – bias of client – malingering –
9. DEALING wrr. REPRESENTATIvEs OF OPPOSrE PARTY
interviews with adjusters – medical, and other representatives of adverse party –
negotiations and pourparlers of settlement – how conducted without prejudicing client’s
interests –
disclosure of material facts or information.
10. DRASrING OF PLEADINGS IN RELATION TO FACTS
style – and precision – procedural rules – use of forms.
11. PE-TRIAL ExAINATrON OP PARTIES, WITNESSES AND DOCUMENTS rOR. CO URT RECORD
when resorted to and how best used –
to proof for the opposite party.
advantages and disadvantages – opening the door
12.
JOINING IssuE IN PLEADING
unnecessary delays in bringing case to trial –
proceedings.
13. REvIEw OF FACTS AND INVESTIGATION
re-examination of witnesses still available –
–
use of rogatory commission.
avoidable side issues, motions and incidental
examination of witnesses out of jurisdiction
14.
15.
PREPARATION OP CASE BEoE TRIAL
personal preparation for conduct of trial –
and cross-examination of witnesses and parties –
before trial –
review of facts and issues with client.
efficient method of preparation for examination
re-examination of client and witnesses
PREPARATION OF AUTHORITIES ON PROBABLE ISSUES TO EE RAISED IN COURSE OP TRIAL AND
IN ARGUMENT ON MERITS.
As an illustration of how this course of lectures might prove to be of value
in the training of a new lawyer, let us explore the topic entitled –
“Meeting
and Interviewing The Client”. At first glance this might appear to be a simple
matter of application of common sense rules of conduct. Yet a closer and more
detailed examination of this subject reveals a number of problems deserving of
more careful consideration and study by both student and lawyer alike.
A practicing lawyer soon appreciates that a client who calls for his services
usually is, or believes himself to be, “in trouble”. Such a person must be
treated with something akin to special patience by the lawyer whose advice
is being sought. Often, too, this is the first personal contact between the client
and his prospective lawyer, and as such, might well determine the course of
their future relationship, if any. It is especially important, therefore, for a
“new” lawyer to be forewarned of certain pitfalls at this time.
Frequently, a client will try to induce his lawyer to interview him at the
client’s office or home; and usually at his own convenience or in the evening,
or outside of regular working hours. This practice should be discouraged as
much as possible and avoided except in the unusual circumstances, where a
client is confined to bed at home or hospital, and where an immediate interview
is desirable. In such cases particularly the lawyer should prepare a letter of
mandate engaging his services, to be signed by the prospective client before he
has spent too much time or effort in relation to the case. For nothing is more
frustrating or disappointing to the young lawyer than to spend several hours
of an evening or weekend, listening to a prospective client and giving advice
No. 3]
TRAINING FOR TRIAL
in relation to a proposed claim or action, and then to find several days later that
the matter has been placed in the hands of another attorney, unaware of the
earlier interview. Too frequently such discourtesy and lack of consideration is
dismissed lightly by the prospective client in terms such as, “Well, I just wanted
his opinion. I didn’t engage him or ‘give him my case”‘. The written mandate
might have proved otherwise. Apart from self-protection, the young lawyer
should be alerted also to prevent himself from being made a party to such abuse;
by a careful inquiry as to any previous consultations by the prospective client
with any other lawyers concerning the proposed case.
In addition to clarifying or establishing his own position to act on behalf
of his client, the lawyer should also discuss a retainer fee and other financial
arrangements with his client as soon as possible after his first interview. Here,
again, are some mistakes which can be avoided easily. Attempts by a client
to engage his lawyer on a quota litis, percentage-sharing or profit-sharing basis
must, of course, be refused by the latter with the appropriate explanation that
such an arrangement would constitute a violation of the Bar Act. In cases where
prior investigation, particularly of the facts, is necessary, to determine whether
the claim is well founded, arrangements should be made for such disbursements
as might be expended in the course of investigation. An estimate should be
given to the client as to the total expenditure, including lawyer’s fees for such
work, despite the possibility that the ultimate result might prove the claim is
unfounded or for other reasons not worth pursuing. Even where the claim
appears to be clear on grounds of liability, the client should still be informed
as to the approximate cost of the litigation involved, with appropriate
consideration for such expenditures in relation to the net amount which might
ultimately be realized.
In all these preliminary matters, tact is essential, yet firmness and frankness
are even more important, if real confidence’is to be established between the
prospective client and his attorney.
Thus far we have touched but briefly on some of the problems arising out
of the solicitor-client relationship itself. But let us now give some further
thought to the interviews with the client dealing with the case itself. In this
area, too, there is much instruction which can be given to the student, and
newly-initiated lawyer, which would prove of benefit to him.
Firstly, his client’s version of the facts should be obtained without
prompting and with keen attention on the part of the attorney. Only too
often a client wittingly, or unwittingly, represents the facts of his case to his
lawyer in a manner which he calculates would serve his interests best. It is
for the lawyer to determine from the long story which will be related to him
how much of the “real” truth has been told by his client. For –
as he will soon
learn, “In ordinary affairs of life, truth is an elusive thing.” 3
3Biskind, p. vii.
McGILL LAW JOURNAL
[Vol. 7
Has his client been biased in his version and has he a knowledge of the real
facts himself? In this desire to present what he thinks to be the most important
matters relating to his case, the client often omits important details; an omission
which could be fatal to his claim.
Lawyers must be prepared to be critical in the examination of their client’s
version, even if the client should be somewhat embarrassed by this type of
inquiry. Often such careful examination of the client’s story will uncover
additional valuable information, forgotten or overlooked in the recital of the
facts. In another sense, this might also prepare the client for cross-examination
by opposing counsel at a later stage.
All this brings us to the conclusion that some basic rules of conduct can be
formulated which would greatly assist the young lawyer with his prospective
client. A more experienced approach to the problem discussed will surely instill
confidence in the lawyer on the part of his client –
a most important result
from the viewpoint of the lawyer at this stage of his career.
Thus might be avoided an incident such as occurred in the experience of a
well-known trial lawyer, which was reported to this writer, as follows:
An old client who sought the services of this trial lawyer’s firm in connection with a rather
routine damage action, was requested on arrival to step into the adjoining office of the “junior”
and to report to him all the facts concerning the claim. The client was told that thereafter
the report and the details thereof would be discussed or reviewed with the senior member of
the firm. After what seemed like an unusually long interview (and a very thorough recording
of the facts – as the senior trial lawyer hoped) the client returned to his office, obviously
dissatisfied and considerably distressed. “Surely”, he said, “you are not going to rely on the
report that your young assistant is going to give you?”
“And why not?” the senior trial
lawyer replied, “didn’t you tell him all the facts?” “Of course”, was the rejoinder by the
client, “but your ‘junior’ merely took down everything I told him, and hardly asked me a
question about the case itself!”
This skeptical attitude of a client whose version was accepted too readily,
is not unusual and merits careful consideration – particularly by the novice
in the profession. For what had caused this obvious lack of confidence –
entire-
ly unjustified, in this writer’s opinion – was merely the lack of “practical”
training in the preparation of a case for trial.
In conclusion, it should be pointed out that it has not escaped attention that
some of the material suggested for discussion might be termed as either sub-
jective, or mere common sense, or both. It also might be argued by some that
part of the instruction proposed to be given to students could be acquired by
their own experience over a period of years under the “trial and error” system
of our courtrooms. Yet it is this writer’s conviction that since much of our
law is basically founded on con”mon sense –
then teaching it in the suggested
manner with regard to trial cases, is both sound training and profitable educa-
tion for the student in the practice of law.
