Keeping-Tabs-Winter-2023

TRIAL ADVOCACY
Trial Advocacy for Junior
Litigators
Flora Yu, Waddell Phillips
Despite being in my first year of call, I have
had the opportunity to act as second chair in
three major civil trials. Trials are a “final exam”
of sorts, testing nearly every major lesson in
advocacy learned in law school and our day-today
practice as litigators. In this article I would
like to share some of the insights I have gained
through trial and error (mind the pun) on how
to support your team through this gruelling
process, and come out as a better litigator.
Plan, but not too far in advance
Time is a precious commodity in civil trials. Planning
in advance helps ease the pressure, but trials
are unpredictable: preparing too much and
too far in advance may result in otherwise excellent
work becoming obsolete and the client
being billed unnecessarily. This is why it is important
to work backwards from a big-picture
timeline with direction from senior lawyers who
can fill you in on the overall trial strategy, the
core arguments on which to focus your efforts,
and the areas that will most likely be subject to
significant change.
With that guidance from senior counsel, you
should prepare an outline of closing submissions
in advance. A helpful outline should contain
the legal arguments and excerpts of the
documentary evidence on which you are most
likely to rely, with clearly demarcated spaces
where you require more research or evidentiary
support. It is important to identify gaps in
your case early and communicate them to senior
lawyers, as these gaps may impact their
strategy at trial.
You should also brush up on key evidentiary
issues that may come up at trial including
hearsay, other anticipated objections (and responses
to anticipated objections), impeaching
witnesses, expert qualifications, and business
records. Investing in the latest edition of Sopinka’s
Law of Evidence in Canada (or other similar
resource) will yield guaranteed returns at trial.
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