Despite what you see in the courtrooms of Law and Order, litigation in the real world is less about cut-throat cross-examinations in front of a jury and more about subtle but strategic preparation at the discovery stage and prior to trial. If you can figure out the sequence of questions necessary to get a witness to agree with your position, you may avoid a trial in the first place.
For Sara Erskine, a commercial litigator and partner at Rueters LLP, that’s the best way to win a case. Though she often takes cases to trial — she has three scheduled for this year — Erskine spends most of her time in the pre-trial phase. Here she tells us how she has mastered the art of preparation.
Once you’ve taken a case, where do you start?
With every new file, Erskine reads everything she can find about the client’s industry, the surrounding laws and all of the relevant caselaw. “That way I can be more specific with my questions when I meet the client,” she says. “We can narrow down the issues more quickly.”
What happens if a case goes to trial?
Erskine will review all of the material from the file — her research, plus everything she has gleaned from the discovery process — and develop a courtroom strategy. “Then I’ll sit down with my colleagues in a roundtable discussion,” she says. “Sometimes they’ll see something I’ve missed.”
What’s it like to be on your feet in court?
Erskine loves trials. “I think of cross-examination as an art,” she says. “My father and I used to debate around the dinner table and I’ve always enjoyed trying to persuade him—and now judges and opposing counsel—to go with my position.”
What kind of clients do you typically represent?
Erskine is a generalist: she will represent commercial clients in almost any industry. That means she might be involved in a shareholder dispute one day and multi-billion dollar fraud case the next. “Because I have such a broad range of clients, my job is never boring,” says Erskine. “I’m probably juggling 30 to 40 files, although they’re never all active at the same time.”
In a recent fraud case, her firm represented the CEO of a forestry company with assets in China. The entire legal team flew to Hong Kong for the trial.
Rueters is a small litigation boutique. Does that come with any advantages?
“In a larger firm, junior lawyers don’t necessarily get to see every aspect of a file,” says Erskine. “When we were in Hong Kong, our articling student came with us to prep witnesses. It’s an experience many wouldn’t get at a larger firm.”
What sort of person would make a good litigator?
“You have to have instinct,” says Erskine. “And you have to want to dig deeper to figure out what pieces are missing.”