Bob Harrison is a retired lawyer, formerly Faskens, Toronto. He practiced law for 47 years—nearly half a century. Asked him some months ago to write out 10 things he could pass on to young lawyers starting out, for our SCC newsletter, as a Last Word. He sent me 14—click here.
Well, he and Richard Swan (Bennett Jones, Toronto) just completed a fine new book, Skillful Witness Examinations in Civil and Arbitration Cases. I’m more of an appeal guy myself, but litigators and arbitration counsel, new and experienced alike, could use this.
Bob did his last trial just before Covid. As a side gig he then tried his hand at writing a screenplay with a legal theme and sent it to his former law partner and long-time friend Richard Swan. They were co-litigators when at Faskens. Richard opined that in decades of litigating cases they “had a duty to share with younger lawyers what we had learned about cross-examinations over our careers.” Bob (having trained under litigation legends such as Walter Williston and Ronald Rolls early in his career) agreed.
They then decided to give the project fuller scope and dimension by expanding the book to include all types of witness examinations: discoveries, examinations in chief, cross-examinations, expert examinations, and out-of-court cross-examinations.
After setting about to draft the various chapters, they realized early on a mere description of skills and techniques would have an unappealing clinical quality unless accompanied by demonstrations from detailed transcript examples. Those examples would be more meaningful if based on facts and procedural steps drawn from a realistic though fictitious lawsuit (no point in receiving a libel notice). The imagined proceeding they developed is a classic commercial dispute: the plaintiff, a research lab working on bioelectronics technology for an important medical treatment, is pursuing a claim to protect its proprietary confidential information; disclosed its design specifications for a medical device to the defendant engineers at a preliminary meeting, and even though it did not retain those engineers, it wants to prevent them from using their newly acquired know-how to design a similar device for any of the plaintiff’s competitors. Bob’s noted “ear for dialogue” was put to good use in crafting the numerous transcript excerpts that can now be found throughout the book.
Having both done many arbitrations they also realized their advice and examples would be of help to aspiring arbitration counsel, but that the book would have to be written to account for the obvious differences between arbitrations and court proceedings—including the typical absence of oral discoveries in arbitrations, and the use of pre-filed witness statements to serve as examinations in chief at the arbitration hearing.
They were then off to the races, in a manner of speaking—the book took them another two years to finish.
Justice John Laskin (retired Justice of the Ont. C.A., August 2023) wrote a foreword.
I now have the book in hand—it just got published last week.
It’s accessibly well organized with over 180 headings and sub-headings that allow one to quickly pinpoint a specific issue if required, on the spot. More importantly, the book with its transcript excerpts as demonstration examples “works” very well as a tool for teaching the forensic skills of how to prepare for and conduct solid examinations in all settings. From the “golden rule”—always be ready to question off the last answer—to a detailed and super-practical guide on how to prepare a cross-examination brief, there is a juridical treasure-trove of practical advice that Bob and Richard have both accumulated and test-driven over many decades of practice.
As Justice Laskin writes: “Bob and Richard don’t just tell trial advocates what to do; they show them how to do it…Their writing is highly readable; plain language throughout, no legalese, no unnecessary jargon, no fancy words. Their advice is clear and easily understood.”
Here’s how to order the book, click here.
Thank you: Robert Harrison (retired), robertsmithharrison@gmail.com and Richard Swan (Bennett Jones, Toronto), SwanR@bennettjones.com.
New Witness Prep/Exam Book
