826 THE ADVOCATE
VOL. 79 PART 6 NOVEMBER 2021
what counsel present and resolve disputes raised by objections from opposing
counsel.
One of the difficulties with summary trials is that the evidence arrives
before the court prepackaged and usually in final form. If the judge had a
preference as to how it might most usefully be assembled, it is usually too late
to express it. The difficulties raised by conventional practices therefore go
undiscussed. Moreover, the topic is, frankly, boring. Many lawyers would
tend to view the organization of application records as a job for their legal
assistants. Lawyers focus on the drafting of affidavits, identification of relevant
lines of authority and development of persuasive argument. They do not
always consider what the judge will be able to make of the record when the
case is taken under reserve. This article focuses attention on that question.
FEATURES OF THE CONVENTIONAL TRIAL PROCESS
In a conventional trial, all of the evidence is admitted in the course of the
trial, under the supervision of the judge. Much of the evidence is admitted
through witnesses, and the taking of oral evidence usually occupies much
of the trial. The trial judge manages the flow of the evidence as it is tendered,
can reject evidence that is insufficiently probative and can deal with
documentary materials that are obscure, illegible, confusingly formatted or
assembled, and so on. The judge has an opportunity to seek clarification of
documents whose meaning or significance is not clear on their face.
The trial is preceded by a trial management conference at which counsel
are encouraged to consider and collaborate on the preparation of a common
book of documents. In a common book, documents will be assembled in a
discernable order, usually chronologically, and duplicate documents will
largely be eliminated. A common book will be tendered at the beginning of
the trial, and most trial judges will take the time to review it, in its entirety,
in advance of the argument.
Argument occurs only after all the evidence has been admitted. By this
point in the trial, the trial judge is already aware of the evidence and has a
sense of the issues and the arguments the parties intend to advance. Most
judges will have spent the trial actively thinking about the case. Many will
have formulated questions to put to counsel during argument.
FEATURES OF THE SUMMARY TRIAL PROCESS
Summary trials are almost always shorter than conventional trials. The
judge probably receives an application record the afternoon before the summary
trial begins. At a minimum, it contains a notice of application and
application response (or responses), and affidavits prepared by counsel for
all parties. It may also contain transcripts of evidence given on discovery,