Thursday, 17 January 2013

Day 102: What is a reasonable delay?

When I arrived at the courtroom of the Montreal tobacco trials this morning, the lawyers were all dressed up in their legal robes. This is a convention reserved for days when there are witnesses, so it seemed natural to assume that the plaintiff's expert witness, Mr. Christian Bourque, would continue to be questioned about his report on the polling conducted by Imperial Tobacco over several decades. A natural assumption, but not a correct one.

(Yesterday Justice Riordan reined in the plaintiffs when they asked questions about polling results that were not included in the report. He had given them the choice between continuing today by sticking to the straight and narrow of that report, or asking to file an amended version).

As these things go, there had been an overnight exchange of e-mails (one of which was reportedly sent at 3:00 a.m. -- this is a scary business!), and other options were on the table. In the end, it was Justice Riordan's second option which was selected, and Mr. Bourque is now scheduled to return on March 4th for one day.

The sudden hole in the morning was soon filled with further trial management discussions and unresolved issues.

Tit for Tat? Not if it causes a delay

Earlier this week, the defendants had confirmed that they want to argue "pre-defense" motions that will try to throw out some or all of the claims against them on the basis that they have not been proven.

Today, Philippe Trudel reminded Justice Riordan that the ability of the plaintiffs to ask for sections of the defense to be struck down were left hanging. (In late November 2009, Justice Riordan made a ruling on such a request that favoured the plaintiffs, but the appeal was suspended as part of a pre-trial agreement to schedule the trial).

Mr. Trudel offered that the issue of paring down the defense might also be discussed at the same time that the tobacco companies presented their rationale for paring down the claims against them. It wasn't clear if he was bluffing or whether this was an option the plaintiffs were seriously considering. In either event, Justice Riordan blew this suggestion out of the water.

He didn't want any delays in the proceedings, said the judge.  "My firm intention is to get to the end without suspensions or delays. Unnecessary steps which risk a suspension, I will avoid." He pointed out that the case had been underway for 15 years, and that it needed to come to a judgement. "If I wasn't clear before, I am now." His tone was even more blunt than his words.

Mr. Potter as witness

Bruce Johnston was in court for the first time this week, and stood to signal that the plaintiffs planned to raise objections about Simon Potter being on Imperial Tobacco' list of witnesses.  "Mr. Potter says it is the same thing as his being on [the plaintiff's] list, but we say it is not the same thing." 

(In July 2011, Justice Riordan had turned down RBH's request to have Mr. Potter struck from the plaintiff's list of witnesses, saying however that "they do not have the right to call Mtre. Potter as a witness unnecessarily." He committed that the court "will not allow Mtre. Potter to be called unless and until it is clear that there is no other alternative.")

Justice Riordan made clear that he shared concerns about the prospect of Mr. Potter being both lawyer and witness in this trial, but fell short of saying he would intervene to prevent it. "I have written at length about the difficulty of calling an attorney as a witness. I understand that Imperial Tobacco has him on the list of witnesses. I am going to apply the same rules as I did with the plaintiffs. If there is another way of making proof, I strongly urge you to explore it, because it is not the best way to proceed."

He looked at Suzanne Coté, who was leading Imperial Tobacco's defense in court today. She gave very cold comfort, and implied that Mr. Potter's fate as an ITL witness hinged on Justice Riordan's decisions on their pre-defense motions. "There may be a way, depending on the result of the February 14th discussion," she said.

Planning for April

It is still far from clear what will happen in the weeks after the plaintiffs wind up their case at the end of March, and today Philippe Trudel raised again the importance of having some clarity about whether the trial was sitting in April or not. "We need to block in dates to be able to organize our schedules, I want them to tell us how long they want before presenting their defense."

(There are very different business considerations for the two teams of lawyers. For the plaintiffs, an empty month adds more overhead to the financial burden of working on contingency, but a scheduled pause might permit them to find time for paying clients. For the defendants, an extra month adds to billings. As a tobacco lawyer famously said "The way we won these cases was not by spending all of our money, but by making that other son of a bitch spend all of his.”)

Mr. Trudel put his concerns bluntly. Are the plaintiffs going to have to wait until the Court of Appeal has ruled on the decisions on the pre-defense motions. A forceful "No Way!" was the response from the bench. Justice Riordan then asked the companies to share their thoughts.

Suzanne Coté uncharacteristically gave a rambling answer to the effect that they would wait and see how the rulings went on their pre-defense motions. "I can't say that a two-week delay will be sufficient. Nor am I gong to say we need a 6 month delay."

Simon Potter was a little more artful. He acknowledged the "duty of the Superior Court" to make a judgement and referred to the complexity of the case. He suggested that the motions that are expected to seek the case to be thrown out or narrowed would hasten evens. "We see our motions heading towards a shortening rather than a lengthening of the trial."  A pause would be a good investment of time, he said.

Bruce Johnston pointed out that the case had been working with the same allegations for over a decade and that the defendants "must have some witness they know they are going to call." 

Justice Riordan agreed with this point, and formally instructed the defense team to "prepare your case as if those (pre-defense) motions are not going to be heard. I am not saying that they wont be heard. I am instructing you to be prepared to start after a reasonable delay."  

He poured further cold water on the idea that the pre-defense motions would be heard. "I will have a better feeling after I have heard you on the 14th [of February, when the legal justification for the pre-defense motions will be presented]. I doubt that I will say anything more than 'are you ready to go after a couple of weeks after the end of the proof'."

More expert witnesses for the defense? Maybe. Maybe not.

On Monday, the defense teams had indicated that they might want two additional exert witnesses (one on warnings, and one on consumer surveys). Discussion on that day had left the impression that they would have until the end of March to confirm this intention. The fact that this went against a previous agreement on timetables prompted a reflection, and Justice Riordan is now proposing that the industry present their reasons for such a request on February 14th at the same time they will be present legal arguments for their pre-defense motions.

Well before noon, Justice Riordan pointedly unplugged the power cord to his computer and asked "Are there other things?  I have a judgement to write."  The court adjourned until Monday morning. 

Next week, the plaintiff's expert witness on marketing, Dr. Richard Pollay, will testify.