stuff i have done wrong (and now do better)

Stuff I Have Done Wrong (and now do better)

Don Young, Associate Director & Chief Litigation CounselNASAA Enforcement TrainingMiami, FL, August 2021

Lay Witnesses with Expertise

Lay Witness – gives testimony but not an expert (first hand impressions – seen, heard, felt…)

I received a share certificate

I was told it was guaranteed

She took my $100,000 bank draft

Lay Witnesses with Expertise (cont’d)

Expert Witness – qualified to provide opinion on assumed facts

the instrument was a security

the trading was manipulative

Lay Witnesses with Expertise (cont’d)

Consider… lay witness with expertise

Staff accountant (CD review/financial misstatement)

Geologist (O&G reserves)

Broker (stock manipulation)

Market analyst (materiality in public disclosure)

Leading Questions in Direct – Not Always a No-No

Direct exam – do not lead (except when you do…)

Objectionable – weight, not admissibility

Not all Yes/No Q’s are leading (Did you invest in Legacy?)

Leading Questions in Direct – Not Always a No-No (cont’d)

Objectionable for contested facts – not preliminary facts, background, context…

Permitted for certain witnesses (e.g. child, elderly)

Permissible on re-direct? No, but…

No other choice (e.g. refreshing memory)

Give Road Map to Judge

Submissions to judge – not a mystery/whodunnit – ever!

Give Road Map to Judge (cont’d)

Explain where going, why doing

ASC Staff will be calling 8 witnesses and anticipate taking a week to complete its case

We are not proceeding with allegations of misconduct relating to paras 15-17 and 22.3 of the NOH

Staff proposes to make a short opening statement before calling evidence

How to Write Right

Always have an overview – make it Punchy Easy to read Short – 2 paras max

Write it last

Overview should say it all

How to Write Right (cont’d)

NOT punchy The Respondent, Fred Gillespie (hereafter, the Respondent or

Gillespie), made a statement that he knew or ought to have known in a material respect and at the time and in the light of the circumstances in which it was made, was misleading or untrue, in breach of s. 92(4.1) of the Alberta Securities Act, RSA 2000. c. S-4 (the Act)

Punchy Gillespie lied to investors and the capital markets about a spray to

prevent the spread of Covid – causing millions of dollars in losses


First sentence of para is key – argument should make sense if only read those

One point per para, build from first sentence

Para breaks are by design – not because getting too long (shift to next point)

Last sentence in para leads to next point/topic change


Do NOT use block quotes – paraphrase and cite

You know what? I don’t read block quotes. I skip over them. To me, it’s yada yada yada. If there is something good in there, I expect the lawyer to tell me what it is

If THAT good, blend quote into sentence

Delete filler words – that, clearly, etc


Mix it up – use bullets, make lists, cut and past evidence/charts


Brevity

To Read/Not to Read, That is the Question

Always read document/transcript/etc – except when you don’t

Witnesses. Mess. Up. Reading

Why it matters? Clarity – record (appeal) Context Emphasis Pace

To Read/Not to Read, That is the Question (cont’d)

Avoids confusion

More efficient

He will only screw things up on Xco and steal more money from us and my daughter like he did on Yco.. as a result of RH’s behaviour on Yco we… are going to have to hire someone else and PAY them… fat chance of that happening

To Read/Not to Read, That is the Question (cont’d)

When to let witness read? Only for good reason

Very short items

When you want words to come out of her/his mouth…

Evidence From “Document Speaks for Itself”

Objection! – document speaks for itself (add smug look)

Not an objection – criticism – we can read the document if that is all the witness is doing

Worse, making witness read and then asking – Is that what you wrote?

Evidence From “Document Speaks for Itself” (cont’d)

IF a reason to read – you do it

IF questions to ask – ask about context, or perception, or reasons for writing, etc

You wrote the word fraud in para 2, was that how you felt at the time?

Why did you say in para 2 this was a fraud?

To Object or Not to Object – That is the Question

Objections not just technical – they are tactical

Just because objectionable, does not mean object…

Consider: are you highlighting a flaw, waking up judge, helping witness who doesn’t need it?

To Object or Not to Object – That is the Question (cont’d)

Objection goals:

Rein in counsel

Clarify evidence

Fairness

Help witness

Protect appeal/record

Set tone

To Object or Not to Object – That is the Question (cont’d)

Non-objection goals:

Give rope to counsel

Indifference/no relevance

Allow good witness to handle

Diffuse impact

Let sleeping judges lie

Time is on My Side, Yes it is

There. Is. No. Rush

WAIT for Judge. Every. Time

WAIT for witness, counsel too

Take time with documents, especially at start, let everyone follow

Record Clarity

Evidence/record must be clear – for judge and appeal

If witness says I would have done X, clarify if she did do X (or if relying on standard practice)

Contractions – did/didn’t sound similar, clarify – Was that did or did not? Would or would not?

Record Clarity (cont’d)

Describe exhibits often in questions (always?)

In Exhibit 7 or In the Subscription Agreement at Tab 3

Describe where you are in documents (helps witness/Judge too)

Exh 7, page 3, bottom right corner, signature line… are you there?

Clarify this, that, she, them, full names, etc

Looping / Sound Bites

USE words from answer in follow-up Q’s

A: She said my investment was guaranteed Q: When did she say your investment was guaranteed?

Q: When she said your investment was guaranteed, how did you respond?

Q: When she said it was guaranteed, was that important to you?

Looping / Sound Bites (cont’d)

Looping repeats good testimony – creates sound bite

Friendly witness – reinforces memory, strengthens for cross

Adverse witness – reinforces testimony, less able to change evidence later

Normal People English – Use it

How did you first come to learn about the company MerendonMining?

Nobody talks like that – except litigators

Use normal people words – Do you know Merendon Mining Ltd.? How?

Normal People English – Use it (cont’d)

Before (not prior)

After (not subsequent to)

About (not with respect to)

If (not in the event that)…

“For the record” – from the department of redundancy department


Avoid adjectives (quality words) in direct exam questions –involves judgment or conclusion, invites objection by counsel or debate by witness

Was that a big loss to you?

Instead - Did that loss affect you? How?


Explore adjectives in direct exam answers

A: I expected to get my return soon

Q: What was soon?

A: I thought the investment was pretty safe

Q: What does pretty safe mean for you?

stuff i have done wrong (and now do better)

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