To suggest there should be a different strategy at the FSCO when conducting Arbitration, than when conducting a trial, is to suggest the medium where persuasion takes place is somehow different from the courtroom. In my view, the medium is the same, and in my practice, with a few minor exceptions, so are the strategies and methods of persuasion and proof.
Therefore, what this paper outlines is my overall strategy in the development of a case to present before the FSCO, that could apply equally to the courtroom.
There are a few exceptions. We all understand the truism “know thy judge”. So too, know thy arbitrator. Learn what are his or her biases, orientations, and interpretations of the legislation or issue at hand. But remember you are developing evidence before someone who has a high level of experience with personal injury, and who may not have to hear a witness on every issue. Alternatively, you may have to work harder to convince an Arbitrator with an already-established evaluation of a given medical condition. As you would in any case, demonstrate respect for the tribunal in your level of preparation, appreciation of their workload, and analysis of the issues.
A caveat: this paper is unabashedly written from the perspective of applicant’s counsel. However, the principals remain the same, whatever side you may find yourself on.
Once you have decided that the case is one that ought to proceed to Arbitration, your evidence preparation will start in earnest. It is my practice to move directly from a mediation checklist to an arbitration checklist. My checklists mirror those used for discovery and trial very closely. Indeed, the pre-arbitration list looks very much like a discovery checklist and the arbitration very much like a trial preparation list. Early preparation is essential if you wish to have as focused a hearing as can be accomplished in the context of the dispute. For the strategies set out below, last-minute preparation will not work well.
STEP TWO – IDENTIFY THE JUSTICE IN YOUR CAUSE
While it is axiomatic to say that litigation before the FSCO is based on the interpretation of a technical regulation, it should be equally self-evident that just causes are hard to beat. Most human beings are motivated to right injustice and situations they perceive as wrong. There is real power in justice. Do not take this to mean that I advocate using the FSCO hearing as a place to torpedo Regulations and laws you do not consider just. Rather, see the over-all context of the case. Ask what was it about the case that first moved you to take it on? Why did you think there should be a remedy here? If you cannot develop a theme that is bathed in justice you may want to consider settling the action.
You cannot develop effective evidence unless you know where you are going with it. Due to the technical nature of this litigation, a clear idea of the evidence that you will need to prove the elements of your case is necessary. That can only be done after you have researched the law. Update that search once you know who the Arbitrator will be, and ensure you are clear about his or her interpretation of the specific provision of the Regulation you are faced with. For example, in an case where you are attempting to gain income benefits for a person with a pre-existing history, it is important to know that the law as expressed in Athey v. Leonati has been accepted at the FSCO. The focus of the evidence going in will then be on the accident’s contribution to the current condition. Having said that, it is to be observed that there is wide variation between Arbitrators in their interpretations of Athey. The point is, legal research should be done early, to understand the evidence you will need to prove your case, and must be updated to meet the needs of the Arbitrator.
The most important witness can often be the applicant, although not always. If this is a case where the applicant can be expected to testify, assume his or her testimony will be paramount. You will be well-advised to develop evidence about your client before the crash where you are meeting these familiar defences to the claim:
The answer to those defences are usually found in the client’s pre-crash function. Examine and explore with your client the following areas:
At the end of the applicant’s evidence, when supplemented by others, the Arbitrator should have a good understanding of this person, and why his or her complaint is likely true. You will have given the Arbitrator evidence that is superior to any of the medical or other evaluators who will be called to testify, or whose reports have been filed. To the extent those reports make judgements about the applicant’s character or motivation, they may be ignored, if appropriate, by an Arbitrator so armed.
Once you are aware of the legal issues, you are ready to re-read the medical opinions amassed against you and determine if they are really as negative as they sounded the first time through. Do not assume that the adjuster who ordered the report asked the right question, or determined that the report answered the right question. You may, and in my experience this happens often, not have to require the insurer medical practitioners to testify. If you do, it may only make their case better. If your opposite’s medical evidence is helpful, leave it be and use it in your opening statement.
Focus on the issue you have to deal with. Usually it is very discreet.
For rehabilitation claims, if you are like me, you will likely want to throw as many issues into the Arbitration as you can possibly manage, to be efficient with costs. Further, once they start to say no, it tends to continue in that vein. The down side is this evidence can become cumbersome, buried in the medical brief, and hard to argue at the end of the case. I like to make it easy on the Arbitrator if I can, and prepare an exhibit that has a face page which gives the following:
Attached to the face page is the bill or expense support, and the photocopies of the portion of the medical report that is referred to on the face page. Do not reproduce the entire medical report again. Once you have referenced it in the medical brief, that is sufficient.
A systematic analysis of your own medical evidence is required. Who do you really need to have there? Make this decision independent of the requirements of your opponent. Who can best articulate the medical theme you are pursuing? Call that doctor, no matter how clear the report is. It is my experience that my opponents always call their assessor, whether or not I require him or her to be there for cross-examination. Even in front of an experienced arbitrator, live testimony is more memorable, has more punch, and can be tailored to deal with the emerging issues as they arise in the case. Often, the only way to evaluate the relative strengths of an opinion is to hear its expression by its author. You must call at least one medical witness. The only exception is where there is an agreed statement of fact, or an agreed-upon medical brief and witness list.
Anticipate the cross examination of your experts before you call them. Call the answer to their cross examination in chief. For example:
Q. Dr. Wright, have you read the opinion of Dr. Amiss?
A. Yes I have.
Q. Dr., in that report, Dr. Amiss states that you are wrong about the diagnosis and relationship of the ongoing complaints to the injuries sustained in the crash. Have you reviewed and considered that opinion?
A. Yes I have, and I don’t agree with my colleague.
Q. Dealing first of all with the diagnosis of
injury to the musculo-skeletal system,
Dr. Amiss states:
At this juncture, quote from the report of the doctor, and request the doctor’s opinion of the expressed opinion of Dr. Amiss.
If you have an opinion that suggests your client is malingering, ask your doctor if that has been considered. Do not wait for the cross examination, unless you are certain your doctor will be given the opportunity in cross examination to explain her view, and will not be over-controlled by the cross-examiner.
Review the demonstrative evidence with the doctor and health practitioners you are planning to call. Make certain that it is helpful, adds to the arbitrator’s understanding of the medical issues, and can be conveniently left with him or her.
A theme that rings of justice but has no connection to the law will be interesting, and powerful, but will lose. At the point you have identified the justice in your case, turned your client into a human being, understood the applicable law, and found the medical evidence that supports your case, you are then ready to articulate your theme.
In a pre-existing condition case where you are seeking ongoing income benefits, the theme may be simply this: Mrs. Z was injured at the worst possible time in her life. It can be filled out and expanded upon, but you make the point that the vulnerable person is entitled to ongoing benefits, unless the insurer can demonstrate either that the injury was not a material contribution to the onset or continuation of the disability, or that the outcome was inevitable.
In my view, it is vital to open to the tribunal, to make it clear where you are going by articulating a well-reasoned theme. Your evidence will best make sense in that context.
At this juncture, it will be clear to you who must testify, whose evidence need not be orally presented, and in what order you should call your witnesses. You may start with a list that is longer than you will ultimately use, depending on the impact of your opponent’s cross-examination.
Do not fall prey, however, to the temptation or pressure to merely present your case on paper. When one appears at the Commission, there is a great deal of emphasis placed upon having as much medical evidence put in on consent. The human drama that is personal injury litigation may compel you to choose from among your potential witnesses and present the one who will best articulate the medical theory. If you know your opponent is calling a good medical witness, even though you do not need to cross examine him, you would be very wise, depending on the tribunal, to call an equally compelling medical witness.
This should really be called: make it easy on the Arbitrator, and don’t forget there is an opportunity for advocacy in the paper.
If the Arbitrator is to accept the thrust of the evidentiary case, he or she must understand your legal theory. Filling a legal memorandum at the outset of the case is an important part of advocating your case early, and assisting the arbitrator in selecting the evidence that will be salient to him or her. Although beyond the ambit of this paper, it cannot really be separated from a paper on evidence.
Consider culling the information down to its essence.
We are all affected by visual images. Property damage is effective evidence. So are photographs and tapes, and other evidence of pre-crash activities. Most people have reasonably full lives (don’t we all complain about being too busy after all?) and have the pictures to prove it. Ask the collateral witnesses about material they may have.
Medical illustrations can be very effective in the proper case. Do not assume that the Arbitrator has a Ph.D. in anatomy or physiology. After many years in practice, I am still astounded by the amount I learn by having a picture, x-ray or illustration in front of me as I listen to a doctor explain what is going on with the applicant. Do not be shy of medical illustrations. They have their place and can be very effective.
Examination in chief is often the
most difficult evidence to prepare. The reader of this paper already knows that
you should have an objective for calling each and every witness. Also
well-known is that evidence in chief should never be any longer than it
absolutely must be. Repeat important concepts, but don’t belabor them.
Less well considered is the importance of seeing evidence as more lyrical or literary than we concrete thinkers do. Storytellers have an introduction to the story, a middle, and an end. Thinking about telling a story with the examination in chief is a useful way to organize each component of the evidence you will lead. The topic at hand is introduced, followed by the facts presented logically, and concluded. Move to the next topic with an introduction, and so forth. Consider always the rules of primacy and recency when deciding which topic to lead with, end with and within a topic, which fact or item to begin and end with. Give the listener oral and visual breaks, to assist with concentration, retention and comprehension.
This is the theory of recency. The
last thing presented is next best remembered. The comments made above are
apropos of this discussion.
First, seek to understand. That is
not as easy as it sounds. Embroiled as I can get in my own theory, I often must
fight to see the case from the other side. But of course, I can’t meet it
unless I understand it. For that reason,
tempted as I might be to have someone else attend the Pre-arbitration hearing,
I attend myself if I am able, and ensure I understand my opposite number’s
theory and plan well.
Second, understand that sometimes a theory is just a theory, and may have no meat to it. Just what can be proven, and how can it be done? What can you call to weaken or refute it?
Third, remind yourself at this juncture of the power of the just cause and legal theory of your case. Drop the insurer’s fact scenario or theory into the theme, and see what comes out.
Do not require every defence/insurer expert to be presented for cross-examination. Determine who really hurts you, how, and whether you can gain anything by cross-examination. It may be that you are better that the expert is buried in a sea of paper, or your own expert comments on the opposite theory.
The reader already knows that any evidence that assists your cause will be exploited. Look for the nuggets. It is astounding how many experts reports reflect an absence of understanding of the legal issues, and can really assist if handled properly.
To be quite frank, I hate games without rules. They are not fair, and have a feel of “anything goes” about them. Worse, is when the rules are made up as you go along.
That can be the feeling counsel has in attending a hearing at FSCO. It is not the Commission’s fault – that any reliable evidence can be considered, was given to it, and we are stuck with it.
Does this mean open the doors to hearsay, innuendo and surprise witnesses who contradict your evidence, after you have closed your case? Not necessarily. There are some approaches that I and others have tried successfully in the past. The result may not always be that offensive evidence is kept out, but by the time it is heard, its use is much diminished.
This might be called the “surprising witness”. Often we are met with a witness whose name we know, but whose evidence we don’t . In one hearing, I objected to the fact that we were hearing evidence about which I had no notice. No one cared about that. However, the fact that my client had already testified, the information was collateral or tangential, or going to credibility only, meant that it was inefficient to produce it now, without having put it to the client to answer. It would cause the hearing to be unduly lengthened since I would be compelled to recall my client if it were received. Those were sufficient reasons to limit the testimony of the witness.
Hearsay. The most effective way to deal with it is to object to its reliability as it goes in. It may none the less be accepted, but will go in with less force once its source is undermined.
Rely on fairness. Recall the reasons for the rules of evidence. Remind yourself and the tribunal that the rules of evidence have these four very helpful goals:[2]
The first three roles are compelling and logical arguments that should assist in any truly egregious situation. Specific rules that you are used to relying on in Court have equally lofty purposes, which may find favour with the Arbitrator.
This goes without saying. However, tying the evidence together in a way that enhances and speaks to your theme is a critical, time-consuming process. Organization of the medical and rehabilitation brief, tying your argument to specific passages, and reminding the tribunal of the witnesses who made a difference are all key components of a good closing.