Trial Advocacy CML 3154A

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Trial Advocacy CML 3154A

• Faculty of Law, University of Ottawa
• Winter Session, 2005

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Review Draft Statement of Claim Assignment

• theme selected for your case
• cause(s) of action for claim
• wrongful dismissal
• Wallace damages
• slander/defamation(?)
• intentional infliction of mental distress
• punitive damages

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Review Draft Statement of Claim Assignment

• elements of the cause(s) of action
• wrongful dismissal
• contract of employment
• express of implied term that, absent just cause,
  employer will provide reasonable notice of
  termination
• employment was terminated by the employer
• no just cause
• failure to provide reasonable notice
• resulting in damages.

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Review Draft Statement of Claim Assignment

• slander/defamation
• the words are defamatory
• the words were published
• the plaintiff was defamed.

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Review Draft Statement of Claim Assignment

• intentional infliction of mental distress
• flagrant or outrageous conduct
• that is calculated to produce harm, and
• that results in a visible and provable illness.

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Review Draft Statement of Claim Assignment

• Wallace damages
• where the actions of the employer breach the duty
  of an employer to be honest and forthright in its
  dealing with the employee,
• then the reasonable notice period may be
  extended to compensate
• awarded in addition to reasonable notice based on
  the Bardal factors.

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Review Draft Statement of Claim Assignment

• punitive damages
• the presence of punishable conduct
• the need for deterrence, or
• the existence of undue profit
• generally reserved for egregious cases everyone
  claims them, very few get them.

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Review Draft Statement of Claim Assignment

• material facts to establish the elements of the
  cause of action

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Review Draft Statement of Claim Assignment

• Role of pleadings at trial
• set the parameters for claims and relief that can
  be recovered and
• for relevant for purpose of oral and documentary
  evidence
• they are also the only documents that the trial
  judge sees in advance of the opening of trial.

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Documents and Documentary Discovery

• Rule 30 obligation to disclose and make
  available for inspection all documents in
  possession, control or power of the parties that
  are relevant to any issue in the action.

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Documents and Document Discovery

• distinction between possession/power/control
• distinction between disclosure/production

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Documents and Documentary Discovery

• requirement to search for documents Zubulake v.
  UBS Warburg (S.N. N.Y. July 20, 2004).
• penalty/sanctions for failure to disclose
  inability to use in evidence risk of adjournment

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Documents and Documentary Discovery

• spoliation of evidence as a cause of action
  the existence of pending or probable litigation
  involving the plaintiff knowledge on the part of
  the defendant of the pending or probable
  litigation intentional spoliation by the
  defendant designed to defeat or disrupt the
  plaintiffs case a causal relationship between
  the act of spoliation and the plaintiffs
  inability to prove its case damages.
• remedy damages/adverse inference

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Managing Documents with a View to Trial

• hardcopy versus electronic production
• authenticating documents
• admitting documents/joint book of authorities
• documents to support witnesses
• documents to contradict witnesses
• documents in place of witnesses

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Discovery of Information Recorded in Electronic
Form

• definition of document in Rule 30
• includes a sound recording, videotape, film,
  photograph, chart, graph, map, plan, survey, book
  of account and data and information recorded or
  stored by means of any device.
• setting the parameters for relevance

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Discovery of Information Recorded in Electronic
Form

• identifying likely sources of relevant documents
• securing documents
• selecting documents search engines, key word
  searches, author/recipient searches
• restoring documents
• producing documents attachments
• Feb. 10, 2005Doc.5635490

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