Preparing and Trying Negligence Cases

Transcription

1 Ottawa Law School March 5, 2018 Preparing and Trying Negligence Cases Presented by: DAVID F. MACDONALD, Partner *David MacDonald Law Professional Corporation cell 1

2 See your case through the lens: What questions will the judge/jury be asked to answer Liability information Sources Investigation Damages / forseeable? 2

3 Car Fall Medical Products Employers Municipalities: example case child fell down eroded bank Premises Bars example case Steinhoff, Brass Rail 3

4 Drivers to passengers Charges Right of way Repair of roadway sign, ice example cases Greer, Ferguson Medical relevant to area of specialization Nature of hospital Nature of relationship Consider insurer doctors 4

5 Inspection Inattention Breach of statute or regulation Occupiers Liability Highway Traffic Training principles Policies or conventions Right of way, split in Liability example: Siddiqui 5

6 Concerning liability Concerning damages But/for example case road rage Multiple sources of cause, plaintiff s duty Gun shot Hiring contractor Example case re tavern: Steinhoff 6

7 Robust approach Ex: medical negligence in treatment of car accident victim injuries is deemed forseeable and not remote as caused by negligent car defendant Knew or ought to have known Reasonableness standard, common practice 7

8 Factual observations Statements Common practice Previous instances Training Policy Laws/duties imposing standard The hindsight problem/bias 8

9 Further investigation Police Records Investigator Witnesses Photos 9

10 Engineer Human factors Medical opinions on Standard Breach Causation remoteness 10

11 Medical malpractice Would condition have developed anyway Was risk explained Informed consent 11

12 Car cases Pre-existing injuries and causation Vehicle condition Additional parties contributing Premises Contributory negligence, Joint and several liability 12

13 Passenger safety equipment Warning As to driver s state impairment Driver as to child seat 13

14 Parents as drivers Coaches Supervision Crossing street, dropping children off: example case Hoang 14

15 Statement of claim allegations Productions affidavits of documents Discoveries and admissions Previous statements 15

16 The victim who tries hard The careless defendant Previous charges Apologies Charges outcome and effect in civil litigation 16

17 Summary of case Key facts Anticipate and address defence positions Simple language Quoting highwater marks on liability and damages Admissions Police findings Defence doctor acknowledgments on damages 17

18 Photos X-rays Videos Reconstructions example case Greer Overhead drawings Piece of malfunctioned part Price tag of cost of repair 18

19 The medium Digital trial Recordings News captures Important apps Good reader Notemaps notability 19

20 For discovery For pretrial For trial the injured plaintiff Memory issues, example Greer Case Example case Trzebinski no memory 20

21 Family and friend Brain injury, under- reporting The treatment provider Establishing greater credibility through frequency of visits Opinion evidence and the meaning of expert 21

22 The police witness Summarizing. Example case Hoang Liability case: The engineer Qualification Municipal standard of care, signage, construction Accident reconstructions Human factors, reaction time 22

23 Who is an expert Negative judicial treatment Assumptions Hypothetical questions Preparing for cross and reexam. Example case: Ferguson: engineer hrycay re sign, speed, reaction 23

24 Decorum Picking jury, four challenges Recording Exhibits sharing Sharing order of witnesses Summonsing witnesses Example case Siddiqui, when I was summonsed 24

25 Judge s opening Who Nature Need for impartiality No googling Taking notes Ipad use 25

26 The opening The theme, the story, the persons we will hear from Exhibits, when and if The injuries Contentious issues or evidence The law Motions re admissibility of evidence Voir dire 26

27 The leading question Hearsay Qualifying certainty Referring to evidence not before the court Opinions on speed, impairment, lighting Consistency 27

28 Lay witnesses Credibility Convictions Factual foundations Distraction factors Example: police seminar accident example Admissions, bias, 28

29 Liability qualification Reports Defence reports Dealing with evidence outside of reports Information from others relied upon: hearsay Authoritative texts, standards: example case Green stop sign Establishing foundational facts Variation in opinions 29

30 Principles of admission Must be: relevant, accurate and fair, Probative effect outweighs prejudicial effect Voir dire used to deal with admissibility. Browne v. Dunne If to be used to challenge credibility, must put to witness first. Example case involving surveillance and failure to disclose To visually aid in conveying the opinion of the expert or lay evidence 30

31 Help the jury to see it your way Examples Business records Photos Mechanical parts Anatomical models Re-enactments Day in life videos Example case amputee putting leg on 31

32 Tables Graphs Maps example case Russell school beside railway Intersection reconstruction with magnets to represent vehicles and movements. Example case Hoang shows defendant could see child well before he struck him. 32

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34 Google maps Example case Ferguson: re failure to adequately inspect roadways and deploy equipment during storm 34

35 Order Persuasive value Summary Reference to law of negligence and evidence proving same Reference to questions to be answered Suggesting answers to the questions Use of exhibits and demonstrative evidence 35

36 Use of admissions and helpful information from defence witnesses Example case Hoang, chart of agreed needs Questions to jury: Was the defendant x negligent If so, what are the particulars of the negligence Example case Hoang: unload children in unsafe unloading area Counsel can suggest amounts for damages 36

37 Fairly summarize all the evidence The law applicable to the evidence Counsel s duty to object to the charge Can t sit back if Judge got facts, accurate summary of evidence, or law wrong in a material way. Counsel should also suggest the remedy, a reworded approach 37

38 Have all the exhibits May have questions Example case: jury contact with witnesses Decision must be unanimous If hung jury Negligence Act apportions negligence Example case Kovachis: 38

39 Ontario Courtroom Procedure Oatley-McLeish Guide to Demonstrative Evidence The Law of Evidence in Canada Rules of Civil Practice Basic Courtroom Etiquette 39

40 Please feel free to call or with questions. DAVID MACDONALD