Have you read the transcripts of the hockey case? The plaintiff’s facts collapsed from simple questions the prosecution had a duty (in Canada) to check before continuing with charges.Predicting witness success and failure in Court is something you do not fully understand until you have lived it. Sometimes you prep a party witness and think they will be great, but then they fold like a cheap suitcase after a few slightly difficult questions. Other times you think, despite your best preparation, that the party witness will fail, and instead they surprise you.
We are talking about non party witnesses, of course, but the prosecution will have the chance to vet and prep them just as in the Hockey Canada case. And just as I do with party witnesses.
The 2 best party witness testimonies I ever heard were completely unexpected. One came in a civil trial I had in January of this year. I was certain we were going down after I prepared the client for his testimony. He could not remember anything, was listless, and worst of all, was seemingly disinterested. It was so bad that I had to bring him back for a second day of preparation which went only slightly better. I told one of the other attorneys at my firm that there was not enough lipstick in the world to cover this pig. I mentally prepared for going down in flames.
Then we got to Court and a funny thing happened. He listened to the other side testify. It stoked him, fired him up. When I put him on the stand he was spitting fire. During cross-examination he turned around questions he was being asked on the questioner in a way that showed the questions to be ridiculous. He ate the cross-examination up, in a way I never saw. I almost could not believe what I was hearing, because I had not heard it in 2 days of preparation, EVER. It's called Courtroom Magic. I have seen it, and when you help make the magic, even in some very small way, it's like having an orgasm from sex.
Unfortunately, it does not happen often and sometimes you are on the wrong side of the Magic. And when you are on the other side of the Magic, instead of leaving Court feeling enthralled, you leave Court feeling sick to your stomach and wanting to vomit. I have experienced both sides of it many times, and in many different degrees of success or failure. But back in January I was on the right side of it in a big way. We won, and I had my Lincoln Lawyer moment. Maybe for the year or maybe for the rest of my career. But I will take it!!!!
The video of the event contradicted her story, her texts contradicted her story, her witnesses contradicted her story and then even her story contradicted her story. It is rare for a plaintiff to get the “this witness has lied so much that the jury can disregard the entirety of her testimony” stamp from the judge. She lied about trivial as well as damning facts and it was not just a memory issue (which you can reasonable invoke in court).
Canada is not like the US - the crown has advantages (can appeal a non-guilty cases and plaintiff background is even more off limit) but judges are more on the side of the defendant (often because they are not elected) and you almost never see courthouse magic. It comes down more to sheer courthouse boredom





