Agreeing on a Joint Book of Documents, The Lawyer’s Daily (May 26, 2020)

(this article originally appeared in the Lawyer’s Daily on May 26, 2020)

By Nikolay Y. Chsherbinin

A trial judge wears many hats. He or she serves as the gatekeeper for the admission of evidence and ensures that a trial record is complete and accurate, so that the appellate court can discern without difficulty exactly what was before the trial judge in the course of the trial. In civil actions, it is common for counsel to agree on a list of documents and tender a joint book of documents at trial. However, it is equally common for counsel not to turn their minds to how documents in the book are to be treated for trial purposes. In Girao v Cunningham, 2020 ONCA 260, the Court of Appeal for Ontario has cautioned the profession that this approach “must change as a matter of ordinary civil trial practice.”

In Girao — a personal injury action — on the eve of trial, the defence dropped a massive and selectively redacted 16-volume “Joint Trial Brief” on a self-represented plaintiff, which was prepared without input from her. At the outset, the trial judge accepted all the volumes based on the assumption that the documents were going to be admissible. The volumes were made numbered exhibits.

An “exhibit” is a thing that is made part of the record of a trial. Exhibits are marked differently depending on the purpose for which they are being made part of the record. A document can become a numbered or a lettered exhibit. Any document introduced by any party does not become a numbered exhibit until it is first identified and ruled admissible. The distinction between numbered and lettered exhibits is that the former is usually evidence on a substantive issue and the latter is usually marked for some other purpose (e.g. identification). In addition, unlike the numbered exhibits, the lettered exhibits do not go with the jury during its deliberations.

In Girao, the record did not reflect the precise basis on which the documents in the joint brief of documents was tendered as an exhibit. While the Ontario Court of Appeal did not consider the flaws in the management of the trial record to be fatal to trial fairness, it stressed that counsel and the court should have addressed the following questions, which it noted “arise in every case” and are not novel:

• Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents? Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?
• Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?
• Are the parties able to introduce into evidence additional documents not mentioned in the document book?
• Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?
• Does any party object to a document in the document book, if it has not been prepared jointly?

These are important procedural questions, many of which counsel could address by way of a written agreement ranging from an agreement about the authenticity of documents to an agreement that the documents can be taken as proof of the truth of their contents. This is the most practical and efficient approach, but it requires careful advance planning. The rationale for such an agreement seems obvious: it saves time and greatly simplifies the trial.

It is helpful to a judge if any agreement as to the documents or evidentiary issues is included at the beginning of the book of documents. On this point, the Court of Appeal signalled that it would be preferable for a written agreement to be attached to the book of documents “in all civil cases.” In addition, the court added that it “would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings.”

If the opposing counsel in a civil case unreasonably refuses to reach agreement, it could be relied upon as part of costs submissions, at the end of the trial.