The Conduct of a Non-jury Civil Trial
| Author | William J. Anderson |
| Pages | 55-78 |
The
Conduct
of a
Non-jury
Civil
Trial
Justice
William
J.
Anderson"
[Editors'
note: This
paper
was
presented
by the
Honourable William
J.
Anderson
to a
judicial seminar
on 20
April
1993,
on the
occasion
of his
retirement
from
the
Ontario Court
of
Justice.
It was
published
with
the
consent
and
concurrence
of
Chief
Justice
Callaghan.]
There
is a
saying about advertising, attributed
to
various magnates
in
the
field
of
retailing, which goes something like this:
"I
know half
of it
is
wasted.
The
trouble
is, I
never know which half."
When
I was a
young lawyer
I was
assiduous
in
attending sessions
devoted
to
professional self-improvement-sessions
put on by the Bar
Association,
the Law
Society,
and
various groups
in the
United States.
Gradually,
a
measure
of
disillusionment
set in: I
found that
a
great deal
of
the
time
so
spent
was
wasted.
I
listened
to
advice
I had
heard
before;
I
listened
to
advice that
had no
bearing
on
what
I
did;
I was
exposed
to
techniques
that
I
just knew would
not
work
for me.
Before
I
became
entirely disillusioned, however,
two
things became apparent
to me. The
first
was
that from almost every such exercise
I
came away with
one or
two
ideas
or
techniques that were
new to
me,
were valuable,
and
were
such
as I
might never have discovered
or
developed
on my
own.
The
sec-
Mr,
justice
William
j.
Anderson,
the
Supreme
Court
of
Ontario.
55
56
ETHOS, PATHOS,
AND
Locos
ond —
less
often,
but now and
then
— was
that
I
came
away
with
a
heightened
measure
of
self-confidence,
based
on the
fact
that
the
lumi-
naries
who
were conducting
the
courses
did not
seem
to
know anything
I
did not
know.
So I
continued
to
attend such
sessions
with
the
knowl-
edge that much
the
same thing could
be
said
of
them
as was
said
of
advertising: half
the
time
was
wasted.
I
am
sure that much
of
what
follows
will
be
already known
to
you,
and
that what
has
worked
for me
will
not
necessarily work
for
you.
But
perhaps
some suggestions will prove
useful,
and
perhaps
you
will leave,
heartened
by
saying
to
yourself: he's survived
for
quite
a
while without
being impeached,
and he
doesn't know anything
I
don't know.
And
perhaps,
in any
event,
it is a
useful thing, once
in a
while,
to
review
the
fundamentals
of our
calling.
Introduction
This article assumes that
the
pre-trials have
all
been concluded, that set-
tlement
negotiations have been exhausted,
and
that
the
case
is to be
tried.
It
does
not
address
the
role
of the
judge
as
mediator
or the
inter-
vention
of the
judge,
in the
course
of
trial,
to
attempt
to
bring about
a
settlement.
It has
been prepared with
fairly
long trials
in
contemplation,
but the
basic
techniques
do not
vary
greatly.
Preparation
Try
to get the
record
a
reasonable length
of
time
in
advance
of the
open-
ing
date
of the
trial:
for a
trial commencing
on a
Monday,
I
like
to
have
it
not
later than
the
afternoon
of the
Friday preceding.
I
first
make sure that
I
have
no
conflicts.
As
one's time
on the
bench
lengthens,
the
probability
of
conflicts diminishes,
but the
possibility
always
exists.
The
sooner
a
conflict
is
discovered,
the
better.
It
produces
much inconvenience
if
discovered
at the
opening
of the
trial,
or
worse
still,
after
it is
under way.
If a
conflict
appears,
I
first
assess
it
myself,
without help.
If I
feel
the
least
bit
uncomfortable,
my
rule
is
simple:
if in
doubt,
get
out.
If I
myself
feel
that there
is no
difficulty
but
that someone
else might have
a
different
perception,
I
raise
the
matter with counsel
at
the
earliest opportunity.
Usually,
the
problem goes
away
in the
course
of
discussion.
If it
does not,
I
revert
to my
rule:
if in
doubt,
get
out.
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