How to Win Your Court Case by Following 5 Simple Principles
/I’ve been doing court-based litigation for 26 years. Much of what I do in recent years involves appeals, where I get to deconstruct what sometimes went horribly wrong at trial, even though one would have thought initially that the facts or law favoured the losing party. It’s led me to some general conclusions on how to win (or lose) in court, and the misassumptions that lead litigants - be they civil, family or criminal - down an ultimately self-destructive path to a trial that they lose, potentially resulting in huge adverse consequences for their finances, their professional, personal or family lives, or even their freedom.
Aside from the first principle, these principles are equally applicable to those represented by counsel, or attempting to represent themselves, as sometimes clients with lawyers may be tempted to push their lawyer towards a strategy that simply won’t work, or may need to question the wisdom of a strategy that is proposed to them.
Use a Lawyer or Settle If You Can’t Afford One, as Even Brilliant DIY Will Almost Never Beat a Lawyer
I’m all for DIY YouTube videos. It’s amazing what one can figure out for home renos, cooking, even health care to some degree. But when it comes to going to court, no matter how smart you are, how much research you do, or how carefully you prepare your case, you’re probably going to lose if you’re up against a lawyer on the other side. And that doesn’t even need to be a brilliant lawyer. Trust me, I’ve seen it time and again in reviewing appeals where self-reps lose at trial, and are then faced with large legal fees on appeal trying to fix the trial problems caused in part by not using a lawyer.
The main problem with trial court DIY is that you lack objective perspective about your own case, and so become blind to the weakness in your case. Thus you convince yourself that some great case precedent you found online will solve all your problems, while really you should be focussing on whether you have enough evidence to prove or defend your case. Lawyers can provide that perspective. Yes, lawyers are expensive. But if you can’t afford one, you should be considering trying at all costs to settle your case, rather than taking it to trial by yourself, as you’ll probably lose. Even if you shouldn’t lose.
I’m definitely not writing this to drum up business for lawyers. At least the ones I know in Canada already have plenty of work. Rather, I’m writing to hopefully help at least a few people avoid not just losing winnable court cases, but also getting hit with potentially crippling massive adverse costs awards at trial - in the hundreds of thousands of dollars - as in most jurisdictions in Canada (other than Quebec), it’s a “loser pays” system (except for criminal prosecutions), where you may be on the hook for at least 60% of the winning side’s legal fees, which can be considerable.
Focus on the Relevant Probative Evidence, Not Collateral Facts
I find in reviewing trial judgments for potential appeals, even the most sophisticated of self-represented litigants (and sometimes even those using lawyers) may have focused on presenting the wrong trial evidence. So if you had a contract, you need to focus at trial on what that contract said, and who might have breached it, rather than on a convoluted explanation of a side agreement that you claim without much proof the parties also concluded. If it’s a family case, you need to be focussing on the best interests of the children from as objective a perspective as possible, not on trying to prove the other person is a “bad” parent by calling a string of your family members to bad mouth your ex-spouse. If it’s a criminal case, focus on whether there really is proof beyond a reasonable doubt of a criminal act, not on whether other people might also be guilty of similar acts.
I’ve seen all the foregoing attempted at trial, through calling a bevy of witnesses that a party somehow thinks will help prove their case for them, while really the judge is thinking to him or herself, why am I even hearing from these people? What does their evidence have to do with the core issues in the case?
Sometimes litigants will also attempt to introduce into evidence dozens of hours of secret audio or video recordings for exactly the same purposes, thinking that somehow the court will want to review all that material - without transcripts of what is being said prepared in advance - in order to draw some obscure conclusions about misconduct by the other party that is totally irrelevant to the issues being decided by the court. Yes, audio or video could be vital, but it’s rare, and you probably won’t need dozens of hours of it - like a few minutes of video in a personal injury case claiming total disability that the plaintiff was actually out playing competitive soccer.
Evidence is More Important Than Law
Despite being referred to as a “court of law,” really judges are much more in the business of figuring out the facts based on the admissible evidence than they are on unravelling obscure legal principles. Most law is actually pretty simple - contracts are binding written or oral agreements between two people; torts involve an injury of one person caused by another person; family law fundamentals involve what is fair in splitting up property, earning capacity, and time with children; crimes involve engaging in conduct prohibited by the legislature - but the facts connected to that law can be fiendishly complicated. How is a court that only has the parties in front of it for a few hours or days supposed to understand all the intricacies of a personal or professional relationship that might have spanned decades?
Thus the key is to give the court cold, hard evidence of the facts that favour your case. This means giving the court a lot more than a “trust me, take my word for it” oral recounting of the facts. It also means more than calling a bunch of your family members to say you never lie, and that the other party can’t be trusted. It means producing every document, email, text message, or diary note you can to support your version of the events, together with truly independent objective witnesses - including experts - to support your side of the case. This may require months and even years of preparation prior to trial, and is nothing you can whip together in a week prior to your case starting.
Understand the Real Legal Issue in Your Case
While evidence remains more important than law in winning your case, you do also need to determine what the key legal principle is that you’re fighting about in court. That’s not always self-evident.
So in a contract case, the issue might be whether a contract was ever concluded, rather than whether it was breached. In a family case, the issue might be an uncertain fight over spousal support, rather than a debate over how marital property is to be split up. In a criminal case, the issue might be whether a mental issue rendered the defendant not criminally responsible, rather than whether the Criminal Code was violated.
To get to this “real” legal issue, it’s usually necessary to list out all the possible issues on a page, and then try to focus on what’s key. Because objectivity is needed for this analysis, just like it is for determining what’s relevant evidence, you’ll need to call in some help.
Pitch to the Judge Why It’s Fair that You Win
Because the minute details of the facts in some cases can defy the full comprehension of even the smartest and hardest working of judges, I’ve found again and again that judges fall back in their decisions on what would be the fairest outcomes to the parties. They might not explicitly cite “fairness” in their decisions, which can often be cloaked in lengthy quotations from obscure legal precedents, but scratch at the surface, and you’ll usually see fairness is a common thread of judicial decision making.
What fairness as a driving principle means in practice for trial results is that you can still lose your case even if you have the superior legal argument, and even if the facts seem to be on your side. So just like you need to objectively examine what evidence actually advances your case, you also need to look at the potential spectrum of “fair” results, and then place yourself somewhere within that fairness spectrum.
Thus contract and family case results, where one party winds up with almost all the money, might not be perceived by courts to be fair, even if the law and facts seem to favour the result. Judges may look for extra obscure legal principles, or focus on seemingly marginal facts, to get to a “fair” result. And if the trial result is fair enough, an appellate court usually won’t overturn it, even if it seems to go against the law the facts, invoking instead deference to the discretion of the trial judge.
However, you can make fairness work in your favour at trial, or on appeal, even when the law and facts seem to be against you, by finding your own obscure legal authorities and factual references to support a particular result that you can justify in detail to be the “fair” outcome. This won’t always work, but it may work better than you would anticipate.
Gordon S. Campbell is a trial and appellate civil, family and criminal litigator working throughout Canada, based in Ontario. Learn more at www.acmlawfirm.ca.