Collecting evidence is the first step in preparing for the trial of an action. Testimony of witnesses, admissions, and documents are the components of evidence. A trial brief of all necessary material for use during the trial should also be there along with (preferably) a law brief for the judge’s reference.
To prove the facts constituting the cause of action or the defence is the objective, and also is the primary consideration in deciding which witnesses to call. It is necessary to disprove and explain the facts proven by the other side because they are harmful, and for this reason, the evidence to which witnesses will testify should be known. It is also prudent to review beforehand the witnesses who will be called so as to obtain instructions and to get inputs from all concerned. Witnesses having knowledge of the facts should be interviewed, and written statements should be obtained from them (though they may baulk at it). All this has to be done with care so as to avoid any charge of witness tampering. Moreover, the consideration of witnesses should begin very early on in the process. Witnesses are to be interviewed separately, and leading questions should not be asked, at least not in the initial stage of questioning. Questions should come with their own answers and avoiding leading questions will help to obtain an honest reflection of the witness’s memory.
If there is more than one witness to establish a particular fact or facts, a decision on which witness to call at trial is to be made. In that event, the following matters are to be considered:
- The inherent trustworthiness, manners, and reputation of the witness;
- The witness’s effectiveness in testifying, the depth of his or her knowledge of the subject matter, and any awkwardness that he or she may display during cross-examination;
- If the opposing counsel is also thinking of calling the witness;
- If the witness is harmful on some other issues, it is better not to call the witness;
- Whether the witness will be considered independent. If a witness is independent, his or her testimony will usually be considered to be more persuasive; and
- If the witness has given evidence about the same issue at another hearing, the witness should review the transcript of the previous testimony before trial, as he or she may be cross-examined about the prior testimony.
When a witness resides outside Ontario, if the moving party requests it, an order can be obtained permitting examination and for the issuing of a commission and a letter of request.
If there are valid objections to it, evidence taken before trial, like evidence given at trial, may not be used at trial. Also, observations made by a commissioner appointed to take the evidence before trial are not binding on the trial judge, who may rule on the admissibility of the evidence. There is also the provision that before or at the trial of an action, the court may make an order allowing the evidence of a witness; or proof of a particular fact or document, to be given by affidavit, unless an adverse party reasonably requires the attendance of the deponent at trial for cross-examination.
In order to adduce the evidence in the most effective manner, usually a chronological presentation of the facts is the most logical order; meaning that the story will be told from the beginning to end. At the same time, there are good reasons to develop the case in a non-chronological way. It could be a good strategy to start with the evidence that has the most impact, the evidence not beginning the story. The party that had the most involvement in the facts, usually will be the source of most of the reliable evidence; it is thus not uncommon to find that party as the first witness, setting the tone for the trial. Such a tactic would bolster the impression that the party’s evidence is uninfluenced by the evidence of other witnesses to follow, and hence is more credible.
It is prudent to consider carefully where the party best fits in the order of witnesses to be called. It may so happen that the party is not particularly strong for some reason. In such a situation, it is better to start with a witness who will give good evidence and who is not likely to be harmed in cross-examination. There are definite advantages to get a strong witness testifying towards (or even at) the end, so as to end on a positive note.
It does not matter if a witness equally available to both sides is not called by either. However, there are circumstances in which the court may draw an adverse inference from the failure of a witness to testify. To change this impression, a satisfactory explanation of the witness’s failure to testify should be given.
Nor does the failure of a party to testify constitute evidence or lead to an unfavourable inference. If, however a party fails to testify where adverse evidence has been given, the party’s failure to testify could be regarded as an admission of the truth of the adverse testimony.
Finally, it would not be impolite to tell the witnesses that they should dress becomingly, speak without aggression and address (preferably) the judge as Sir or Madam.
Preparing for trial is not easy; often met with tremendous preparation and large costs. Talk to the lawyers at Levy Zavet PC to discuss your alternatives to going to trial.