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Imagine the judgment and write it | William Poulos

Friday, September 17, 2021 @ 9:46 AM | By William Poulos

William Poulos %>
William Poulos
We have accepted a litigation case. It has led us down various investigative trails. We have ventured down text, e-mail and correspondence trails. We have reviewed banking and cell records. We have played over and over video and also closely reviewed photos. We have further ventured down Facebook, Twitter and Instagram investigative trails and possibly even many more types of social media routes trying to possibly capture further information to round out the picture.

But in the end, when that final judgment in our case is written, what will be the material facts, issues and analysis the case will rest on? We don’t have a perfect crystal ball on the situation, but might have a pretty good idea where the case is leading us, or at least it appears that way. We have client objectives to satisfy, but also client expectations to manage.

After sorting through everything, we have to persuade the court to find in our client’s favour and hopefully we have the evidence and the law and sound arguments that will meet our client’s objectives and achieve justice.

Imagine what the judgment will look like. What would be logical headings and subheadings? What ultimately will be the material facts the court will cite and the issues the court will deal with? How will the analysis of the case play out? And imagine the concluding section of the judgment.

One useful exercise may be to actually try writing the judgment in your case. Put yourself in the position of the judge who will have to sort through the array of facts, laws and arguments submitted and make sense of it all so that it reads clearly and communicates the findings to the parties and the public.

During the above exercise, there may be revelations that will help serve your client. Maybe a factual trail that has not been investigated should be. Maybe we don’t need to go down another trail as it really in the end is not material. There may be a revelation that a legal issue that has not been fully explored should be looked at more carefully. A need to bring in an expert may make more sense.

In this exercise, we venture closer to the heart of the case, the substance of the matter and where ultimately the case is more likely to end. During this exercise, we may be in a better position to communicate with our clients how important settlement is and why. At very least, we put ourselves in the shoes of the person we hope to persuade and might help to make their job a little easier. Perhaps, for example, certain presentation aids might communicate a group of facts more clearly to the court and help the court with the case analysis.

The above exercise need not be limited to trial judgments. It can also apply in other important matters — for example, interlocutory injunction and summary judgment motions. It can be a useful exercise to imagine the appeal judgment.

The exercise need not be limited to court settings. It can be employed for example in tribunal matters or arbitration. We put ourselves in the objective seat of the adjudicator and during the course of the exercise may discover matters from another perspective. We might be in a better position to anticipate an important question the court is going to ask during submissions.

There are many ways to prepare before the final judgment or order or appeal decision, whether in court or before tribunals. Imagining the order, decision or judgment, and trying to write it, may be another tool that may serve to help us meet our fiduciary role and act in our client’s best interests.

William Poulos has practised civil litigation for over 30 years and is a sole practitioner in Kingston, Ont.

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