Tomorrow night is our first in-class lecture for the Litigation Practice class. We’ve already been notified by email that we should be familiarizing ourselves with the CLS Caseworkers manual. I remember the same thing being stressed when I volunteered as a first-year associate case worker last year.

As an associate the responsibilities were quite limited – conducting intakes and writing the odd demand letter for a Litigation Practice student. I skimmed over the journal last year for the sections that related back to those responsibilities then. This year, however I will be sure to pay more attention to the remainder of the manual since I really have no idea what to do when carrying a criminal or criminal file.

I do have some recent experience in Small Claims Court. Last week over the “spring break” I appeared in small claims court as a representative for my father’s friend. The case involved a sum of money that my client claimed to have given to the defendant as a personal loan when the defendant told him that he desperately needed money to make his mortgage payments. My client’s English is not great so it was a challenge to get the story out of him and make sense of it when we began preparing for the case in the week preceding. I suggested we call his son to the next meeting since he had first hand knowledge of the case and a far better command of the English language. The second meeting was far more successful and I got the whole story out. Or so I thought…

After a few days of research, going through the defence’s disclosure and my client’s own materials I wrote up a few pages of notes and considered myself ready to go to court. When the day finally arrived I met my client in the waiting area and found his name on the court docket on the wall. We had to wait several hours before we finally got called in.

My first surprise was the format of the court appearance. I had no idea that I was going to have to question my client and the defendant and their witnesses to get the story out. I thought that I would just read out my client’s story to the judge! And as the plaintiff’s representative I was the first up to bat with the examination in chief! Luckily, I had paid attention in Evidence class last semester and had written up in detail the story that I wanted to get out of my client in my notes. When I asked him open-ended questions my client strayed into hearsay a few times and didn’t understand the judge when she told him that he couldn’t admit those statements in evidence. I had to jump in at those times to rephrase questions to him. One of my lessons of the day was to stay in control of the witness even when he’s your own client.

The much bigger surprise (which taught me my most valuable lesson) came with the cross-examination of the defendant and his witnesses. These gentlemen had come to court far more prepared than I expected. My client had led me to believe that they had no case and had nothing to back up their claims. The defendant was counter-suing for $10,000 more than the amount my client was claiming from him. He claimed that the entire amount represented wages earned as a consultant for my client. He and his witnesses were very well co-ordinated and had documentary evidence to show the work that was done right down to a log book of every single hour the defendant had worked for my client. I was shocked as I asked questions I thought I knew the answers too only to get a well supported but very contrary response. For example, when I was trying to undermine the defendant’s credibility by showing he had no connection to my client’s business, I asked one of his witnesses if he had ever seen the defendant’s name on any of the company’s stationary or business cards. I expected the answer to be no, however the defendant reached into his front pocket and pulled out a business card with the defendant’s name printed right below my client’s company logo. The judge actually turned to me sympathetically at that point and said: “Young man, you’ll be wise to learn the first rule of cross-examination. Never ask a question you don’t already know the answer to.” I apologized meekly and proceeded with the questioning. The lesson had certainly been learned.

After a brief recess the judge returned and delivered her verdict. My client was ordered to pay the defendant $10,000 in past wages plus court costs. We had lost.

As we walked out and the client and his son discussed appealing the decision I thought about what I had done wrong. Had I just lost my client $10,000? Could I be liable? I decided that there was little likelihood of my client suing me – besides being quite judgement proof we made a strong verbal agreement that I should try my best since I would probably do a better job than he could by himself. However I still criticized myself and thought about what I could have done differently. It seems that when all the facts came out, my absolute faith in my own client’s story was shaken. I should not have taken him at face value when he said that the defendant’s claims of unpaid wages were entirely baseless and that he would have no evidence to support his story. Another lesson then would be to never put absolute trust in your client’s stories – there are always 3 sides to a case: the plaintiff’s, the defendant’s and the truth. I thought it was a cliché but it was proven for me that day. I learned that there is a lot more preparation that goes into trial preparation than just hearing your client’s story.

Although it was slightly embarrassing to walk out of my first small claims court appearance without a victory it was a great learning experience and I look forward to the practical lessons I can learn in the Litigation Practice class to make sure that my next court appearance is more successful.