August 25, 2023
When considering the valuable lessons that the court system learned during COVID, the focus is usually on the advantages of video for motions, trials, or taking evidence from witnesses in distant locations. This is really about trial efficiency. Another important lesson has emerged about trial efficiency, that is, the importance of trial management. Judicial resources are scarce, and trial management is essential but must be exercised carefully.
Historically, trial judges seldom placed hard limits on the time for examination of witnesses or cross-examinations. The growth of trial management has included a trend towards what some refer to as “trial by stopwatch”.
Appeal courts are now speaking out about the limitations of trial by stopwatch and the circumstances in which it may lead to an appeal. The objective is not to limit trial management but to ensure that it does not interfere with a fair and just trial.
Trial management is a delicate art, not a science, and appeal courts will often defer to the decisions of the trial judge. What recent cases have discussed is the circumstances in which an appeal is appropriate. This, in turn, gives guidance to trial judges and lawyers about the limits of trial management.
Courts are always concerned about justice, particularly in criminal law cases where people may go to jail. R. v. Samaniego was about which of the two accused was in possession of a firearm. That meant one was going to jail, and the other may go free. The trial was heated.
The Supreme Court of Canada had an opportunity to review the trial management. Prior to this case, the Court had implicitly endorsed the concept but had not explicitly considered giving guidance on the limits.
Trial management is “an essential and versatile tool”. It should ensure that trials proceed fairly, effectively, and efficiently. This emphasis on efficiency is what gives rise to trial by stopwatch, which is a whole different beast that judges simply interject to restrict cross-examinations that are unduly repetitive, rambling, argumentative, misleading or irrelevant. That expanded role of trial management, in turn, conflicts with the tradition that parties are entitled to expect to present their cases as they see fit.
The Ontario Court of Appeal examined the limits of trial by stopwatch in a civil trial – where no one is going to jail- in Interhealth Canada Limited v. O’Keefe. The trial judge, conducting a virtual trial during the pandemic, when additional court time was not readily available, imposed limits on the time permitted for the examination and cross-examination of each witness. The schedule was agreed to by the parties. The judge was clear about the intention to hold the lawyers to the time limits.
The Plaintiff lost the trial and complained on appeal that they did not have enough time to finish their cross-examination of two key witnesses.
The Court of Appeal did not endorse the strict “time’s up” approach of the trial judge. They went on to consider what judges should do in future cases, applying the Supreme Court’s direction in Samaniego that “the trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency.”
So, what should a trial judge do where counsel seeks an extension of the time agreed or fixed for cross‑examination, and their cross-examination has not been unduly repetitive, rambling, argumentative, misleading or irrelevant?
The trial judge should:
- Ask what additional questions counsel plans to ask;
- How long counsel estimates that might take;
- Assess the relevance and materiality of the proposed further questions;
- Determine whether a brief extension is reasonable in the circumstances.
Where the trial judge exercises their discretion in this way, appeal courts will defer to the trial judge’s decisions.
Since the trial judge had not done so in this case, the Court of Appeal made the determination that further time would not have been helpful and did not give effect to this ground of appeal. However, going forward, judges, parties and lawyers now have a process to follow.
- The days when parties could present the evidence in any way they see fit, with no effective time limits, are over;
- “Trial by stopwatch” may occur in some cases but will not apply strict limits:
- The limits may be relaxed in accordance with the principles set out by the Court of Appeal;
- As long as the trial process is fair, appeal courts will not second guess a trial judge on process decisions;
- Lawyers and self-represented parties will need to prepare carefully, thoroughly, and thoughtfully for the examination of witnesses to avoid wasting time;
- A focused examination of a witness is always more effective in any event.
HOW WEILERS LLP CAN HELP YOU
Not every law firm has the combination of experience and expertise that Weilers LLP possesses.
At Weilers LLP, we understand the law and, more importantly, understand the art of advocacy necessary to present your case to the court in the best possible manner.
Focused and clear presentation of evidence in a time-sensitive fashion is not new to us- it is fundamental to how we do trial work. The time spent in preparation pays off in shorter trials and effective advocacy.
If you are looking for lawyers who ramble, are unduly argumentative, repetitive, and misleading, Weilers LLP are not the lawyers for you. If you value efficiency and effectiveness, Weilers LLP may be the right lawyers for you.