Civil Litigation Practice Basics 2016: Pre-Trials and Settlements Andrew Winton

Topics Pre-Trial Conferences Requirements & What to Expect Preparation Settlements Strategy “Sewing up”

The Purpose of a Pre-Trial Explore opportunity for settlement Judicial mediation-light Preparation for trial Timetable of remaining steps Witness lists Estimate length of trial (and therefore cost)

Pre-Trial Briefs Must be delivered at least 5 business days in advance Usually a prescribed format, but you can use your own format, so long as you: Briefly summarize facts and legal issues in dispute Identify your witnesses and anticipated length of examination-in-chief for each witness Address other trial readiness issues

Documents Attach key docs and transcript excerpts referred to in your summary Key docs include expert reports Rule 53.03: expert reports must be served 90 days before the pre-trial, responding reports must be served 60 days before

What To Expect - Settlement PTJ will discuss the opportunity to settle the case Could last a long time Expect hard questions – possibly in front of your client Expect to be asked to make at least one offer to settle This will be your new floor/ceiling – decide whether to “go for it” or whether to hold back for another day

What To Expect – Trial Readiness PTJ will raise trial readiness issues Who are your witnesses & is attendance confirmed How long will your case take Pre-trial deliveries (e.g., Evidence Act notices, will-says) Any way to narrow the issues If you are not prepared, you may get “punished” via the timetable or an adjournment of the trial date

Pre-Trial Preparation See checklist Parties must attend with settlement authority, or else have authority by phone Brief your client in advance re. expectations Consider your negotiation strategy & discuss with your client in advance

Settlements When to attempt – conventional wisdom: Before an action is commenced At the mediation At the pre-trial Any time up to (or during) trial

Settlements When to attempt – another approach: Before spending $ on documentary discovery, interlocutory motions, or any other major step Always consider settlement opportunities! Put it in writing/Get it in writing – with/from your client and with/from opposing counsel

Settlement Strategies Before making an offer: Get instructions in writing Plan a path for negotiation – don’t start at your final offer or you’ll have nowhere to go If your client is a businessperson: listen to her or him – s/he may be a better negotiator than you

Settlement Strategies Help your client make an informed decision: Ask for and be prepared to give without prejudice disclosure on key issues Evidence of damages Evidence of ability to pay – don’t settle for a compromised bankruptcy claim

Settlement Strategies Don’t deal with everything at once Start with the major issues If you agree on $$, usually the rest falls into place “Sew up” after the basic structure is agreed to

Sewing Up See the checklist Beware of precedents – they are no substitute for attention to detail Be careful and precise, but don’t “argue about the colour of the thread” Balance certainty with efficiency

Sewing Up Key components: Minutes of Settlement Release Dismissal Order Work collaboratively with other counsel Beware of attempts to re-negotiate – use rule 49.09 if necessary once you have an accepted offer in writing

Summary Pre-trial prepares your client for trial Make sure they know what to expect Get settlement instructions in writing to avoid “settler’s remorse” Minutes of Settlement are a contract you are drafting for your client – keep it simple and clearly worded