Proctor : June 2019
28 PROCTOR | June 2019 Planning your trial plan A comprehensive trial plan is an essential part of the proper preparation of a case for trial. This article identifies the key features of a comprehensive trial plan and the issues which can arise in its preparation. Timing In the Supreme Court, the parties are required to confer for the purpose of developing a basic trial plan “[a]s early as reasonably possible in the proceeding”. 1 The conference must be attended by the parties’ counsel or solicitor responsible for the conduct of the trial. 2 The trial plan must be prepared ahead of the case management conference before the Resolution Registrar under the Supreme Court’s pre-trial case management for civil litigation procedures.3 In some instances, a trial plan may be required earlier in the proceedings, for example; to assess whether the trial of a separate issue is worthwhile.4 Basic parameters As a general rule, at trial there are five hours of hearing time available per day. Whilst it is a matter that varies among courts and individual judges, typically, the court will sit between 10am and 1pm, and 2.15pm to 4pm or 4.30pm. The trial plan must program all of the submissions and evidence within those timeslots. The trial plan should address each of the following tasks: • housekeeping and preliminary matters • opening submissions • for each witness: • examination in chief (or objections to evidence, if evidence in chief is by affidavit) • cross examination • re-examination • closing submissions. It is important that the parties are realistic in the time allocated to each witness. While key witnesses may occupy substantial time, witnesses on minor or formal points will often be dealt with very briefly. Ordinarily, re-examination will be brief, and can usually be allowed 5 or 10 minutes in the trial plan. If witnesses are allocated too much or too little time, this can lead to inefficiencies at trial and require the solicitors to, at the last minute, arrange for other witnesses to come to court at short notice. Giving evidence is a stressful task, and it is not assisted by being called on to do so at an unexpected time. Special considerations apply on the extent to which witnesses may be cross examined by multiple parties with a common interest.5 The parties should be aware of these principles when allocating time for cross examination in the trial plan. Content The Supreme Court publishes a template trial plan.6 This template is a helpful starting point and should be used. The template may be enhanced by the following additions: • The template does not include a time allocation for re-examination. While re-examination will usually be brief, it ought to be factored into the trial plan. • The template does not allow time for objections to evidence. If evidence in chief is by affidavit, an additional period should be allowed for objections. • The template does not include a time allocation for preliminary or ‘housekeeping’ matters at the commencement of the trial. While matters of this nature should be kept to a minimum (as they should be addressed in advance of the trial), it is inevitable that there will need to be some time to address the court on administrative matters such as trial bundles and witness arrangements. • The template is separated into days. Each day should be further separated into a morning and afternoon session. • In preparing the trial plan, it may assist the parties to include an additional column keeping a tally of the time allocated to all of the witnesses in each day to ensure that it does not exceed five hours in total. The Supreme Court template also requires that the parties identify the issues to which each witness’s evidence relates. So as not to complicate the trial plan, this should be done in a very brief way. Strategic considerations Preparation of the trial plan requires the parties to make at least three key strategic decisions. First, the sequence of the parties’ opening submissions, evidence and closing submissions. Unlike other states, 7 the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) does not set out a default order for addresses and evidence. The traditional order is that the plaintiff opens its case, followed by calling all of its witnesses. The defendant then opens its case, followed by its witnesses. The defendant then makes its closing submissions first and the plaintiff thereafter. There are alternative structures, including both parties opening their case REPORT BY KYLIE DOWNES QC AND WILL LeMASS The preparation of an effective trial plan is not simply an administrative task. It requires the parties to make key tactical decisions as to how their case will be presented at trial.