Preparing for Trial

Very few cases get here

The overwhelming majority of civil claims in Ontario settle. If yours is going to trial, it is because something genuinely could not be agreed, and both sides have decided to let a judge or jury resolve it.

It can still settle. Cases resolve in the weeks before trial, on the morning of the first day, and part way through, sometimes after a witness has given evidence that changes how one side sees the case. Do not treat a trial date as the end of negotiation.

Judge alone, or judge and jury

Most Ontario civil actions can be tried by a jury if a party serves a jury notice. Simplified procedure actions cannot: those are heard by a judge alone.

Courts of Justice Act, s. 108; Rules of Civil Procedure, rules 47 and 76.02.1.

In motor vehicle cases the jury notice is usually served by the defence rather than by the injured person, and the choice between judge and jury is a tactical one your lawyer will have discussed with you long before now. A jury of six decides the facts and the damages; the judge decides the law and instructs them.

One practical difference matters to you as a witness. With a jury you are speaking to six people who know nothing about the case, so plain language and patience matter more.

What the room is like

A civil trial is a public hearing. Anyone can walk in, including members of the public and, in some cases, reporters. Your family can attend, though family members who are giving evidence themselves may be asked to stay out until they have testified.

You will sit with your lawyer. The judge is at the front, the court reporter records everything, and the witness box faces the courtroom. Trials run on court hours with breaks, and there is a great deal of waiting: for rulings, for legal argument the jury cannot hear, and for the schedule to catch up with itself.

Giving your evidence

Examination in chief

Your own lawyer questions you first. The questions are open ended, because a lawyer is not permitted to lead a witness on the substance, and the point is for you to tell the account in your own words.

This is the part clients find easier than they expect. It is also the part that matters most, because it is the first and fullest version of your story the decision maker will hear.

Cross-examination

Then the other side's lawyer questions you, and this is the part people dread. It is different from discovery in three ways that are worth understanding in advance.

• It is public and it is in front of the decision maker. At discovery you were talking to a lawyer in a boardroom. Here the judge or jury is watching how you answer, not only what you say.
• It is designed to persuade, not to gather information. Defence counsel already knows what you will say. The questions are built to make points, and many will be leading questions inviting a yes or a no.
• Your discovery transcript is in their hand. Anything you said then can be put to you now, and inconsistencies will be explored carefully.

The discipline is the same as at discovery, and if anything more important. Listen to the whole question. Answer only what was asked. Do not guess. Do not argue with counsel or try to win the exchange, because a witness who spars looks like an advocate rather than a person telling the truth. If a question is unfair, your own lawyer will object; that is their job, not yours.

Your discovery transcript comes back

The other side is entitled to read portions of your examination for discovery into evidence, and to confront you with what you said then if your trial evidence differs.

Rules of Civil Procedure, rule 31.11.

Your lawyer will review the transcript with you before trial. Where an answer you gave was wrong, the fix is to have corrected it properly along the way rather than to explain it for the first time from the witness box.

Surveillance, if there is any, may also be played. If it exists, you will have known about it well before trial and will have had the chance to explain the context.

Rules that apply while you are a witness

Two of them surprise people.

Witnesses are often excluded from the courtroom until they have given their own evidence, so that one witness does not shape their account around another's. That can include your spouse or family members who are testifying.

And once you are under cross-examination, you will usually be told not to discuss your evidence with your lawyer until you are finished, including over the lunch break and overnight. It feels isolating at exactly the moment you would most like advice. It is normal, it applies to every witness, and your lawyer will explain it before it happens.

The part nobody prepares you for

You will sit and listen while the other side argues that you are exaggerating, that your injuries are not what you say, or that what happened to you was not anyone's fault. You may hear a doctor who examined you for an hour give an opinion about your life. In a malpractice case you may hear the care that harmed you defended as entirely reasonable.

It is adversarial by design, and lawyers become numb to it in a way clients never do. Tell your lawyer in advance if there is particular evidence you will find hard to sit through. Sometimes arrangements can be made. At minimum, nobody should be blindsided.

What is at stake financially

A trial is the point at which the costs risk becomes real. If the case is lost, or if you do worse than a formal offer the other side made, a costs order can follow. Your lawyer will have gone through those numbers with you at the pre-trial, and should go through them again before the first day.

See legal fees and costs for how that exposure works.

How to prepare

• Read your discovery transcript. Properly, all of it, and flag anything you would now say differently.
• Meet your lawyer for a full preparation session. Not a phone call. Expect to be taken through likely cross-examination.
• Arrange your life around it. Time off work, childcare, transport and parking, for more days than you think.
• Dress as you would for something serious. Neat and comfortable. A suit is not required.
• Plan for the waiting. Bring something to occupy you and expect long gaps.
• Ask what the realistic outcomes are. Best case, worst case, and what each means net.

Common questions

How long will I be in the witness box?

It varies enormously. In a serious injury or malpractice case a plaintiff can be in the box for a day or more across examination in chief, cross-examination and re-examination.

Do I have to attend the whole trial?

Usually you are entitled to be present throughout, and it is generally better that you are. Discuss it with your lawyer, particularly if there are days where your attendance would serve little purpose.

What if I get emotional?

That is common and nobody thinks less of a witness for it. Ask for a moment or a break. Courts accommodate this routinely.

What if I do not know the answer?

Say so. "I do not know" and "I do not remember" are proper answers at trial exactly as they were at discovery, and far better than a guess that gets tested.

When will I find out the result?

A jury usually returns a verdict within days of the end of the trial. A judge sitting alone often reserves, meaning the decision is released in writing weeks or months later.

Can we still settle once the trial starts?

Yes, and cases do, sometimes part way through. A trial date does not close off negotiation.

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