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

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

3. 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)

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

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

16. 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