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ANNUAL REVIEW OF CIVIL LITIGATION 2019 THE HONOURABLE MR.JUSTICE TODD L. ARCHIBALD SUPERIOR COURT OF JUSTICE (ONTARIO) 30839744 Discovery as a Forum for Persuasive Advocacy: Art and Science of Persuasion Ð Chapter IX 1 TODD ARCHIBALD,ROGER B. CAMPBELL AND MITCHELL FOURNIE The flash and dash of the courtroom is exhilarating for the lawyer but dangerous for the client. Accordingly, the truly successful lawyer will take his cases there only seldom. When he does go, he will go highly prepared; and that high level of preparation will be made possible by the apparently dull, but fascinatingly powerful tool, of discovery. And when a lawyer has been successful in keeping his client out of a trial, it will most often have been the same tool, discovery, which will have helped him do it.1 I. DISCOVERY AS A FORUM FOR PERSUASIVE ADVOCACY The image of the persuasive litigator is often associated with trials. It is an image that evokes the courtroom scenario and the pressures that accompany it. Here, witnesses are tenaciously cross-examined, answers are carefully assessed, credibility is gauged, and lawyers make their opening and closing addresses in full view of the judge, jury, and public. It is an image that draws on the solemnity and magnitude of trial, where the potential for settlement has long passed and a verdict or judgment is the only potential outcome. It is from this situation, at the end of the litigation process, that our notions of persuasive advocacy are often derived. In this ninth installment of the Art and Science of Persuasion, we look at how persuasive advocacy can and must extend beyond the courtroom. In particular, we examine the way that discovery is a critical forum in the process of developing a persuasive case. As will be shown, discovery permits the litigator to test the strength of each party's story, to investigate them for weaknesses, and ultimately to position the client for success at trial. By conducting discovery effectively, many of the same admissions, contradictions, and testimony that win trials can be elicited from witnesses. In fact, the power of discovery is such that it often renders trial unnecessary. 1 Justice Todd Archibald, B.A. (Hons), LL.B., LL.M. of the Superior Court of Justice (Ontario). Roger B. Campbell, B.A., LL.B., FCIArb, Q.Arb, Fellow of the American College of e-Neutrals, member of the Sedona Canada Working Group 7 Steering Committee and member of the Ontario E-Discovery Implementation Committee. Mitchell Fournie, B.A., M.A., J.D., lawyer at Crawley MacKewn Brush LLP and former judicial law clerk of the Superior Court of Justice (Ontario). 1 Robert B. White, Q.C., The Art of Discovery (Aurora: Canada Law Book, 1990) at 5. Annual Review of Civil Litigation / 2 The pre-trial discovery process is typically comprised of two components Ð disclosure of relevant documents (commonly described in Canada as ``production of documentsº) and examination for discovery (sometimes described as ``questioningº). The ``examinationº phase may be done by way of written interrogatories, but in most cases, it is conducted orally. Our focus in this installment is on oral examination and pre-examination advocacy, including documentary disclosure. Since the inaugural issue of the Art and Science of Persuasion in the 2011 edition of the Annual Review of Civil Litigation, the series has focused on how the most persuasive litigators are compelling storytellers. Prior papers in the series have covered the essentials of story-centered litigation,2 cognitive processes crucial to effective storytelling,3 opening statements,4 the use of soft science evidence,5 experimental psychology,6 the closing address,7 the barrister's authority as narrator8 and tribunal advocacy.9 Uniting each paper is the argument that good advocacy depends upon good storytelling. Each paper builds on the idea that a winning case, no matter how small or big, must be presented as having a believable plotline, a credible narrative, and relatable characters. In short, the series demonstrates how litigation is won or lost by the moral force that the litigator can harness behind their client's version of events. 2 Todd L. Archibald and J. Manuel Mendelzon, ``The Trial Advocate as Storyteller: The Art and Science of Persuasionº in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Canada Limited, 2011). 3 Todd L. Archibald and Shannon S.W. O'Connor, ``Cognitive Psychology in the Courtroom: The Art and Science of Persuasion Ð Chapter IIº in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Canada Limited, 2012). 4 Todd L. Archibald and Joshua Tong, ``Impactful Trial Opening Statements in the Courtroom: The Art and Science of Persuasion Ð Chapter IIIº in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Canada Limited, 2013). 5 Todd L. Archibald and Jeremy Fox, ``Examining the Reliability of Expert Soft Science Evidence in the Courtroom: The Art and Science of Persuasion Ð Chapter IVº in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Canada Limited, 2014). 6 Todd L. Archibald and Christian Vernon, ``Incorporating Insights from Experimental Psychology and Behavioural Economics into ADR Practices: The Art and Science of Persuasion Ð Chapter Vº in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Canada Limited, 2015). 7 Todd L. Archibald and Eric Brousseau, ``The Closing Address: The Opening Chapter in Trial Preparation: The Art and Science of Persuasion Ð Chapter VI,º in Archibald, ed., Annual Review of Civil Litigation (Toronto: Thomson Canada Limited, 2016). 8 Todd L. Archibald and Mark Friedman, ``Advocating with Persuasive Authority: The Art and Science of Persuasion Ð Chapter VIIº in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Canada Limited, 2017). 9 Todd L. Archibald and Brett Hughes, ``Looking into an Advocacy Mirror: The Parallels Between Tribunals and Courts Ð The Art and Science of Persuasion Ð Chapter VIII,º in Archibald, ed., Annual Review of Civil Litigation (Toronto: Thomson Canada Limited, 2018). 3 / Discovery as a Forum for Persuasive Advocacy II. STORYTELLING AS PERSUASIVE ADVOCACY As a form of advocacy, storytelling is among the most powerful tools available to the modern civil litigator. While all litigators must master the law, their task ultimately depends on presenting a compelling, credible, and convincing story that resonates with the judge or trier of fact. In the inaugural issue of the Art and Science of Persuasion, Mr. Justice Todd Archibald and J. Manuel Mendelzon explained how a story-centered approach is crucial to any successful litigation strategy: The most persuasive litigator is a compelling storyteller. This oft-repeated maxim may seem trite, however, many litigators consider this principle to be only pertinent to the preparation of a jury address, and not to all stages of their litigation. In reality, a well- constructed and coherent case narrative will resonate with conviction from the beginning of the case to its successful conclusion. Many litigators fail to adopt a story or theme-centered approach to litigation. They do not consider the strengths, weaknesses, and structure of their case's narrative until it is too late. These lawyers all too often end up, as the great Canadian humorist Stephen Leacock once wrote, ``riding madly off in all directions.º10 By presenting the evidence in the form of a story, the litigator transforms what is otherwise a series of often mundane historical facts into a theme that can be understood and embraced. As explained by Steven Lubet: Trials, then, are held in order to allow the parties to persuade the judge or jury by recounting their versions of the historical facts. Another name for this process is storytelling. Each party to a trial has the opportunity to tell a story, albeit through the fairly stilted devices of jury address, examination-in-chief and cross-examination, and the introduction of evidence. The framework for the stories Ð or their grammar Ð is set by the rules of procedure and evidence. The conclusion of the stories Ð the end to which they are directed Ð is controlled by the elements of the applicable substantive law. The content of the stories Ð their plot Ð is governed, of course, by the truth, or at least by so much of the truth as is available to the advocate. Thereafter, the party who succeeds in telling the most persuasive story should win.11 Just like any other human endeavour, trials are driven by the underlying storyline. The version of events that presents itself as the most compelling is the one that is likely to find success. 1. The Theory of the Case The first component of any successful storyline is a `theory of the case'. What sets the litigator apart as a storyteller is the ability to present a story in a manner 10 Archibald and Mendelzon, ``The Trial Advocate as Storytellerº at 1. 11 Steven Lubet, Modern Trial Advocacy: Analysis and Practice, Canadian Edition, adapted for Canada by Sheila Block and Cynthia Tape, National Institute for Trial Advocacy, Inc. 1995 at 1. Annual Review of Civil Litigation / 4 that satisfies the legal requirements of the claim or defence. As underlined by Archibald and O'Connor in the 2012 issue of the Art and Science of Persuasion: The theory of the case is the story of what really happened and the adaptation of the facts to the legal issues to be decided. It will logically and coherently lead the trier of fact to the conclusion favourable to the litigator's client Ð it will explain why a particular verdict is compelled by the law.12 A good theory of the case compels the judge or trier of fact to decide in the client's favour.

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