The foundation for successful litigation is largely laid and established before parties walk into Court for a trial. Often, parties have a range of possible claims they can assert and defences that they can make against such claims. Parties may differ in their willingness and ability to conduct research into the factual basis for their position and whether or not established law supports their position. It is often a critical determinant of success whether or not the pleadings, such as the Statement of Claim and Statement of Defence, properly tell a story and that are likely to be well received by the judge.
The Rules of Court allow people to challenge each other’s pleadings and seek more elaboration or other information that may be required to adequately respond. Once again, in some circumstances, it can be an important part of establishing a proper foundation for a party to seek such further information or require that a party put the allegations in its Statement of Claim and Statement of Defence, for example, in a way that is fair and even handed.
Examinations for discovery tend to be a very important part in establishing and preserving the position of a party. As we have mentioned earlier, these examinations allow a party to examine an opposing party or representative of the opposing party to clarify what their position is and to determine which evidence they may be relying upon to prove their allegations. Examinations for discovery can also be used to require a party to produce more relevant documents and information before trial.
Those are just two examples of the types of pre-trial motions and activities that can occur. The Court Rules are very complex and provide a huge number of possible motions that can be brought. None of these motions finally resolve the matter. However, they may set a party’s movement through the litigation in very different trajectories. Since 95% of matters settle, the success or failure in these motions can be a critical determinant of the settlement position that parties are willing to accept.
In some matters, pre-trial injunctions may be available. For example, it may be possible to have a Court order a former employee to stop soliciting clients of a former employer for a period of time prior to a trial.
Performance in Court and at trial is critical. You do not want a litigator who is inarticulate or cannot think on his or her feet! However, the preparation and strategy that occurs prior to the trial are also critical in establishing the outcomes of disputes.