It is one thing to have written material prepared through the assistance of a lawyer, whether it is a claim filed in court, or appeal materials filed at a tribunal forming the basis of an appeal hearing (Tribunal appeals are often trial type hearings, as explained elsewhere in this website). It is quite another thing for the applicant to be personally prepared. Whether a court trial or a tribunal hearing such as CPP, WSIB, or WSIAT hearing, the following factors should be noted:
DRESS AND DECORUM:
Dressing for the occasion is a good rule to follow. It is not necessary to be suited; simply being neat is enough. Being neat shows care for the occasion. It demonstrates that you take the process seriously and view the court or tribunal with respect. This should be matched by being on time. If late, an apology should be made. If you have a lawyer, tell the lawyer that you wish to personally state your apology with or without a reason.
PREPARING THE CASE:
It is important to prepare for the case and not expect your lawyer to take charge of it all. The well-prepared lawyer will, of course, know his facts. But the client must be prepared as well, in order to leave a striking impression that the case is deserving of the merit claimed. After months or even years of waiting for a hearing, it is often the case that you may feel disheartened with the process, or lose interest. Instead, you should motivate yourself before the hearing and adopt a positive attitude with the conviction that your viewpoint will be made clear by you. Do not worry about your fluency with language or your lack of experience. These factors are much less important than the way you present yourself. You cannot change your level of fluency before a hearing nor gain experience if this is not your daily bread. But in making your case, nothing leaves a better impression than your total demeanor conveying sincerity and a plain desire to be understood.
The panel hearing the case, or the judge or judges, will confer before deciding, in many cases, instead of deciding the case instantly after hearing it. The time the judge takes to reflect upon a case that has been heard, before writing the decision, brings up the most vivid images of sincerity of the applicant. Sincerity is at the heart of most cases, since they are fact-ridden with disputes on vital facts. Such disputes can be settled only upon believing one side over another. Sincerity is the cornerstone of the applicant’s conviction.
Each of the following non-exhaustive factors can be evidence of sincerity: voice-choking; crying; variation in response time and tone in natural accord with the question; a serious response to a serious question without flinching; wrinkling of the face showing emotional impact of an incident; furrowing of the brow upon natural surprise. It does not matter how you demonstrate your human side, as long as it is natural. No preparation is needed for revealing your true self. Being coy is not necessary. Being natural with a respectful tone and mannerism rarely seems an act of defiance and disrespect.
An applicant should speak slowly and clearly, but naturally. Letting your nature guide you is useful. Some practice to be slow and clear can be held privately. This could be by preparing with another family member, friend, or your lawyer if you have one, through a session of questions and answers. Ask someone to quiz you on questions relating to the disputed facts, playing devil’s advocate. Try answering with sincerity, slowly and clearly. Do not be unnatural in trying to be overly sincere. Simply say naturally whatever is your position. Ask a neutral person to judge you and make suggestions if necessary.
It is advisable to make eye contact when answering. This can show greater conviction in your words and convey your sincerity. In many eastern cultures, looking in someone’s eye is considered not respectful to the authority of the decision maker. A judging panel may not see eye to eye if the eyes are not met. The risk of explaining cultural factors to the judge is fraught with the danger of seeming disrespectful. The matter is better handled by eye contact itself.
Some women may feel this hard to do, specially when they are the sole witness of their case, as in a WSIB or a CPP case, or a family law case, and where eye contact with authority figures is not the norm in their culture. It is a good idea to conduct intense prior private practice sessions at home for those under these circumstances facing an upcoming hearing.
This, however, may not be easy. The lawyer or representative, should in that case, when summarizing the case, explain all factors that without the applicant’s testimony would indicate independent strength of the case, and also mention the lack of eye contact as a cultural factor that should not be viewed negatively in the decision-making process by discounting her testimony. This needs some artful conveying of the subject that is not well-understood. Making the point respectfully is all a lawyer can do. Over-reliance on such a factor can give the impression that objective factors such as medical findings of doctors, for example, are not being emphasized. Arguing that eye movements should not be relied upon in judging is expecting someone to go against their own grain.
It is conventional wisdom that judges rely upon facial expressions when deciding. This judicial process implicates the perceived meaning behind the movement of the eyes. Shifting eyes can convey the impression of furtiveness and thus mislead a judge.
Trying to change the impression conveyed to a judge or jury by the manner in which one testifies is one of the most formidable challenges in the art of persuasion. Individual impressions cannot be legislated upon or argued away by the brilliance of an advocate. This is why those applicants who are aware of this factor and give themselves some time to practise eye contact for the purpose of the hearing, may, albeit with some difficulty, make their presentation somewhat easier.
The potential for an unjust decision arising from lack of eye contact remains. Understanding the significance of the issue will enable dealing with it on a timely basis in preparing for a trial or hearing.
PREPARING FOR TRIAL:
Generally, claimants will have written materials filed, either written by themselves or by their representatives or lawyers. These materials, once drafted under the name of the applicant, become the word of the applicant. They are not interchangeable with the interpretation of the actual writer of the material. Do not say to the court or tribunal that “my lawyer drafted it so I didn’t intend to say that or misunderstood it even though I signed the affidavit or statement.” This never impresses a judge.
Of course, a cross-examining lawyer can try to trap you within your sentence structure of your written material by its apparent contradiction with your oral statement. This should be expected since, as part of the preparation of the case, the opposing side is looking for such language to attack the credibility of the claimant. This is generally the dramatic moment of the hearing with flustering claimants struggling to explain what they really mean without distorting their written word. This drama is often unavoidable, though it is always a good idea to be active in fully understanding everything provided under your name, and asking your lawyer all questions in advance. Words penned under your name, and often by extension under your authority by anyone else, are fodder for your own cross-examination.
Speaking slowly has the advantage of giving your lawyer an opportunity to raise legitimate objections. Do not look at your lawyer while answering questions of fact that you ought to have personal knowledge of. It can compromise your credibility though it may have been only an instinctive reaction for subconscious support.
Your lawyer can raise a proper objection if a difficult question regarding exact meaning arises or if the real issue is a legal question arising from your written or spoken words. Remember, the legal implications of your factual statements are not matters you are expected to be an expert on. The lawyer can explain the legal character of the question to the court or tribunal. This will sometimes result in the opposing side objecting that the issue is factual, not legal. The judge will decide if the question needs to be answered based on calling the question factual or legal.
This interactive process, where objections arise, is natural in any trial or hearing. Discussions on some issues of this type arising without your full understanding of what exactly is happening should not unnerve you. The panel will better appreciate through your lawyer’s objections the nature of the issues involved. This process does not go against you as a claimant.
Where the question seems unclear and you are inclined to answer it as a factual question, there is nothing wrong to ask if the question needs to be answered. Stating this confidently helps since it would show sincerity in doing exactly what the legal process expects of you. It is likely a judge will not consider this inappropriate on your part. If you have a lawyer, this will give the lawyer time to assess the character of the question, specially if you speak slowly, giving her the additional time precious in a tightly time-knit hearing process. The lawyer may indicate her view and ask for a ruling on that point.
Note that your understanding of this process should not cause you to start answering questions by routinely saying that the questions are clearly legal and you do not have to answer them. This is for the lawyer to state and for you to give her enough time to state. Stating this objection yourself repeatedly can cause you to come across as being too smart for the process and not credible. But what if you are representing yourself?
You are entitled to state all legal objections when you represent yourself but face the practical difficulty of maintaining your credibility when you perform the role of witness and advocate as one person. The judge has to filter whether what you are saying is plainly your testimony or an argument. Testimony is the material you provide to be judged for truth. Argument is your interpretation of facts that you want to be accepted for its persuasive content. Confusion in the mind of the judge in evaluating your statements as testimony or argument cannot be resolved easily when you represent yourself. A lawyer prevents that confusion as a separate advocate without devaluing either your testimony or his argument. This benefit is inherent in differentiating the role of a witness from the role of an advocate.
Getting around the dual role of witness and lawyer when representing yourself is always difficult. You may not have a choice, however. In that case, make sure to never overstate your case, maintain the high tone of respect, question with an open mind whatever you do not understand, remembering that the opposing lawyer, if there is one, is only doing her job in making you uncomfortable. You do not have a right to a comfortable cross-examination. You do have a right to a fair cross-examination. Calling a question unfair when it is unfair is better than being subjected to improper cross-examination. State your case as best as you can. This is important because omitting vital issues from being put on the record by thinking the decision maker may get annoyed by your presentation will lose grounds for appeal if an appeal arises later, as explained elsewhere in this website relating to the appeals section. The risk of offending a judge annoyed by excessive objections must be counterbalanced by the need to state your case for the record.
If acting for yourself, remember that the opposing lawyer can control the mood of the court and ask uncomfortable questions, in large part due to your lack of full awareness of the legal process. You can state to the court what you do not understand or what you consider unfair. A court or tribunal does not expect you to have become a lawyer through your hearing. Do not worry about making mistakes. Sincerity will go a long way in being judged fairly at the end of the day.
But remember it is not the job of the court to assist you. It has to maintain its neutrality. Never get annoyed at the judge. State all objections to the other lawyer through the judge, not by talking to the other lawyer during the trial. This is the procedural expectation and a judge will appreciate it if you follow this simple rule. It is easy to see how talking to the other lawyer can be an impermissible cross-talk that does not show respect for the court. Sometimes lawyers overlook this point as well when deep in their need to express their clients’ viewpoint. Keep it in mind all along.
Make eye contact with the judge as much as possible. This will allow you to stop talking if need be, when the judge is taking notes. Do not hesitate to ask the judge at the right moment in court: “With Your Honour’s permission, if I may continue” when you see the judge taking notes continuously to keep up. This is one of the easiest ways to show respect for the court. A judge takes note of all signs of respect. Tribunal panels are not addressed as Your Honour, which is reserved only for court judges. They can be respectfully addressed as the Chairperson or the Panel. Showing respect adds credibility without effort. Civility attracts trust in your word. The result could be your success.