1. Justice Robert Beaudoin November 16 th, 2012

2.  Most disputes are solved as a result of the negotiation process.  Our rules prepare every case for an event that will most likely not happen.  A pre-trial is one more tool designed to enhance the negotiation process.

3.  Talking to an empty chair. (Rule 50.05)  Authority to settle.  So, you’re a government lawyer; don’t feed the stereotype.

4.  Read Rule 50, 53 and 20.5 as well.  Schizophrenic rule.  Know what you are preparing for.  Communicate with the other side.  Communicate with the court.  Find out how much time you have.

5.  FACT suit vs. LAW suit.  Different approaches to settlement.

6.  Try to find out the pre-trial judge’s style in advance.  Prepare to answer questions.

7.  Edit, Edit, Edit.  Use demonstrative tools.  Charts, diagrams, videos.  Glossary of terms  Electronic format with hyperlinks?

8.  Start with an overview. Do not simply repeat the allegations in the statement of claim. Think of the brief as an opening address to a jury.  Know your cause(s) of action and state the law that applies.  Understand the remedy you are seeking.  Identify the chain of facts that you must prove and refer to the evidence that you have that will support each finding of fact. Analysis not argument.  When identifying evidence, consider documents and reports, discovery evidence and “will say” statements of others.

9.  Summarize the damages in a clear and concise way. Set them out under separate headings.  Simplify the math or perform the necessary calculations.  If you organize the material properly, the pre-trial judge will come to the correct conclusion. Leave the arguing for the trial.  Unless it is a lawsuit, case law is rarely important. If you are referring to other cases for an assessment of damages, you can do so without reprinting the entire case.

10.  To be served prior to the pre-trial conference.  An expert’s report is only as good as the assumptions and the material upon which it is based. Make sure that those assumptions are well supported by the evidence.  Some expert reports are quite complicated or may contain a great deal of detail. Please consider a summary.

11.  Many pre-trial conference briefs start out strong but fade towards the end; usually when the pre-trial judge is getting to the critical part. The tell-tale sign is when damage numbers are plugged in without any sort of analysis. The best way to ensure against that is to write the conclusion first.

12.  These must be realistic and these should represent your client’s offer of compromise and not your prediction of the best possible outcome if the matter proceeds to trial.  What is the process of approval for any settlement.

13.  The pre-trial judge or master can make any order that is available under Rule 20.05 (1) or (2).  Come prepared to address these issues and pay particular attention to 20.05(2)(k) (meeting of the experts).  Get any other orders you might need.