Column

The Role of Parties and Representatives in Addressing Backlogs and Delays: Examining Witnesses

In my last column I focused on the legal framework for addressing backlogs and delays in administrative tribunals. Before I start to explore the adjudicator’s toolkit for reducing backlogs and delays, I thought it might be worthwhile to start with what the parties and their representatives can and should do to assist in this rather large challenge.

There is some truth to the perception that one of the parties to a dispute either wants delay or is ambivalent about it. However, that is not always the case. Sometimes resolving a dispute – whether you win or lose – is good for both parties. In addition, those representatives governed by law societies (lawyers and paralegals) have an obligation to the tribunal and the administration of justice to not actively contribute to the delay of proceedings.

The first thing that parties can do to assist in the effective and efficient administration of justice is not to engage adjudication at all. Settlement, with or without the aid of mediation, results in cases not being added to the backlog. Although tribunals appreciate withdrawn files due to settlement, what they appreciate more are files withdrawn with sufficient time to be able to schedule other cases. A settlement the day before a hearing does not allow a tribunal to schedule another hearing in its place. So last-minute settlements may address the backlog but fail to address the delays in scheduling hearings of other cases.

If parties engage in good faith, in-depth, settlement discussions but are unable to reach a settlement, there are still things they can do to reduce hearing time. After extensive discussions about a dispute, the parties can usually identify the sticking points – or the facts or issues in dispute. The parties can then present to the adjudicator an agreed statement of those facts not in dispute and a focused list of issues that need to be determined. In many cases, the parties will also agree on the relevant documents that will need to be presented to the adjudicator – those undisputed documents can go into an agreed book of documents.

One of the keys to an efficient use of hearing time is preparation. I am not qualified to provide any advice on how to prepare for a hearing – all I see are the results of that preparation (or lack of) in the hearing room. In the hearing room, the proceedings proceed more smoothly if the representative has their notes and exhibits organized. A concise opening statement is also helpful for an adjudicator. As well, a good knowledge of the evidence intended to be relied upon can help focus the questioning of witnesses.

The part of a hearing that takes up the most time, and that the adjudicator has the least control over, is the testimony of witnesses. In a future column I will discuss the extent to which an adjudicator can control the time that testimony takes. The role of the adjudicator is limited to stopping repetitive testimony or testimony that is not relevant. The courts generally do not accept strict time limits on testimony, for example. In most cases, it is the evidence portion of a hearing that takes the most time. Therefore, representatives play a critical role in making that part of the hearing as efficient as possible.

The first tip for representatives is that dispute resolution is not an opinion poll. Having multiple witnesses testifying about the same incident does not make the evidence more reliable. Experienced adjudicators will quickly let you know that they do not need to hear another witness saying the same thing as a witness who has already testified. It’s better if those witnesses are not called in the first place. It also means that your first witness on a critical point in your case should be the best witness on that point.

A recent book on examining witnesses (Skillful Witness Examinations in Civil and Arbitration Cases by Robert S. Harrison and Richard B. Swan) should be on the desk of every representative to assist them in the preparation for examining (in chief and cross-examination) witnesses. The authors emphasize the importance of preparation for examining witnesses and provide some useful tips on preparation for that examination. It is in its discussion of how to examine and cross-examine in the hearing room that the book shines, in my view.

The book starts with what the authors describe as “the Golden Rule” – always be ready to question off the witness’ last answer. This technique, common among journalists and other professional interviewers, is to frame your next question around the answer you have received from the witness. This is different from just reading from a list of prepared questions and requires that the representative listen carefully to the answer being given and build the next question around that answer. The advantage of such an approach are obvious – it tends to elicit more complete testimony. The authors note that while this approach seems straightforward; not following this golden rule is the most common error that inexperienced representatives make.

Being ready to question off the last answer involves the following tasks, that in total will result in a more efficient examination of a witness:

i. focusing entirely on the witness and the answer the witness is giving (not your notes, nor a document, nor any other distraction);

ii. taking the time to absorb the witness’ answer;

iii. evaluating in the moment what to do next, given the witness’ answer;

iv. leaving the answer alone when it is clear, responsive and helpful to you;

v. pressing the point when the answer is not clear or responsive;

vi. if necessary or appropriate, pursuing whatever else the answer may put on offer, whether that is a positive new line of inquiry that the answer opens up, or undertaking a form of damage control…

If all representatives left the answer of a witness alone when it is “clear, responsive and helpful”, all hearings would be shorter.

The most important chapter in this book is the one on cross-examination. This is the most difficult part of eliciting testimony from witnesses and, when not done effectively, can lead to a hearing getting bogged down. Although there will always be exceptions, lengthy cross-examinations are generally not useful to the adjudicator’s task of deciding a case. Most lengthy cross-examinations are due to either arguing with the witness or just having the witness confirm what they said in examination-in-chief, neither of which are helpful.

The authors provide a comprehensive guide to effective cross-examination, including how to prepare a cross-examination brief on each witness. Again, preparation is key to an effective cross-examination and preparation will lead to a more focused cross-examination – one that is both more effective and more efficient.

The book also includes a useful chapter on examination-in-chief and cross-examination of experts.

In the book, the authors have included a fact scenario of a commercial dispute that they use effectively to illustrate the principles that they set out. This is a very effective way of demonstrating the application of techniques – or making concrete what would otherwise sound like a platitude.

In the final chapter of the book, they tease the possibility of a settlement of this fictional dispute based on effective cross-examination of a witness, demonstrating that a well-prepared cross-examination can lead to a reduction in backlogs.

A close reading of this book and the application of its guidance by representatives before tribunals will result in more effective examination of witnesses and will contribute both to the efficient and fair administration of justice.

Comments are closed.