An almost daily conversation at the Montreal Tobacco trials this season is the schedule for the upcoming weeks.
The three tobacco companies give all appearances of scrambling to adjust their calendar as they cut their list of witnesses down. I would expect that the selection of witnesses is an evolving issue in any trial - but in recent weeks it seems to be more a story of devolution.
There are a few stages in this trial where the witnesses have been identified. One is before the trial, where each party presents a formal statement of readiness, which includes the list of witnesses. These statements were duly filed in February 2012 by Imperial Tobacco, Rothmans, Benson and Hedges, and JTI-Macdonald. A second was on January 14, 2013, when the companies complied with Justice Riordan's demand for a list of witnesses. A third list was filed with the court, but not made fully public, on April 9. Subsequent schedules circulated in June and September have similarly not been made public.
It was in response to the length of these witness lists that Justice Riordan ruled to constrain the "Defence Proof" to 175 days. It now looks like this cap is way above the number of days that will actually be required, as the number of witnesses - and the length of their testimony -- is frequently reduced.
The baker's dozen in-house witnesses
On Wednesday this week, JTI-Macdonald provided its presumably final list of in-house witnesses. There are 5, of whom 4 will be scheduled in November. (The fifth, a former president, is apparently not available until next year.)
Reducing the number of witnesses does not seem to be motivated by any desire to speed up the trial, however. Over the past six months, the companies have pressed the "pause" button for 18 trial days -- six weeks' worth of hearings.
Justice Riordan has agreed to several of the Industry's requests for breaks in the schedule, including one week in each of June, September and November. Other holes in the schedule were left when witness testimony took less time than scheduled, but there was no court business on deck to fill the time left vacant.
The trial has thus sat for only two-thirds the number of hearing days as in the same period during the "plaintiffs' proof" last year. To be fair, 2 of those additional days are the result of more statutory holidays or a breaks to accommodate a judges' meeting. (The figure shows the grey-days where the trial was suspended for 2012, in green, and 2013, in red.)
Days of testimony by in house fact witnesses for the 3 defendant tobacco companies
(updated on November 25, 2013)
The trial will resume on November 4, with the return of JTI-Macdonald's former head of research, Ray Howie. An after-the-fact report on the testimony this week by RBH regulatory director, Steve Chapman, will appear here next week.
The three tobacco companies give all appearances of scrambling to adjust their calendar as they cut their list of witnesses down. I would expect that the selection of witnesses is an evolving issue in any trial - but in recent weeks it seems to be more a story of devolution.
There are a few stages in this trial where the witnesses have been identified. One is before the trial, where each party presents a formal statement of readiness, which includes the list of witnesses. These statements were duly filed in February 2012 by Imperial Tobacco, Rothmans, Benson and Hedges, and JTI-Macdonald. A second was on January 14, 2013, when the companies complied with Justice Riordan's demand for a list of witnesses. A third list was filed with the court, but not made fully public, on April 9. Subsequent schedules circulated in June and September have similarly not been made public.
It was in response to the length of these witness lists that Justice Riordan ruled to constrain the "Defence Proof" to 175 days. It now looks like this cap is way above the number of days that will actually be required, as the number of witnesses - and the length of their testimony -- is frequently reduced.
The baker's dozen in-house witnesses
On Wednesday this week, JTI-Macdonald provided its presumably final list of in-house witnesses. There are 5, of whom 4 will be scheduled in November. (The fifth, a former president, is apparently not available until next year.)
With these additions, there will now be 13 in-house fact witnesses presented by the tobacco companies, about half the number that were on the schedule shared two months ago. Not all of these changes can be seen as the result of strategic decisions -- some are infirm, two have died and one was effectively struck from the list by Justice Riordan.
If the November schedule goes as planned, these men (no women!) will have testified for a total of 27 days -- a fraction of the 71 days predicted in January, and much fewer than the 41 days on the schedule set in September. A table of former and current employees identified in connection with this trial is shown below.
And we still don't know what is in store for December!
And we still don't know what is in store for December!
Foot dragging? Fear of the Finish line?
Reducing the number of witnesses does not seem to be motivated by any desire to speed up the trial, however. Over the past six months, the companies have pressed the "pause" button for 18 trial days -- six weeks' worth of hearings.
Justice Riordan has agreed to several of the Industry's requests for breaks in the schedule, including one week in each of June, September and November. Other holes in the schedule were left when witness testimony took less time than scheduled, but there was no court business on deck to fill the time left vacant.
The trial has thus sat for only two-thirds the number of hearing days as in the same period during the "plaintiffs' proof" last year. To be fair, 2 of those additional days are the result of more statutory holidays or a breaks to accommodate a judges' meeting. (The figure shows the grey-days where the trial was suspended for 2012, in green, and 2013, in red.)
Days of testimony by in house fact witnesses for the 3 defendant tobacco companies
(updated on November 25, 2013)
Witness
|
Pre-Trial
|
Jan 2013
|
Sep
2013
|
Final
|
Date
testified
|
ITL
In-house fact witnesses
|
|||||
Barnes, L
|
1
|
1
|
|||
Blanche, N
|
§
|
1
|
1
|
Oct 16
|
|
Boswall, A
|
3
|
||||
Chan, A
|
3
|
||||
Crawford, P
|
2
|
||||
Duplessis, G
|
5
|
3
|
2
|
3
|
Sep 12, 16, Oct 10
|
Hirtle, J
|
§
|
1
|
1
|
Oct 15
|
|
Kalhok, A
|
3
|
2
|
1
|
Oct 7
|
|
Kemball, B
|
4
|
2
|
|||
Massey, S
|
10
|
10
|
(deceased)
|
||
Mercier, JL
|
2
|
2
|
2
|
||
Porter, A
|
4
|
2
|
2
|
Aug 27, 28
|
|
Potter, S
|
2
|
1
|
|||
Read, G
|
5
|
3
|
3
|
Sep 9, 10, 11
|
|
Richard, E
|
4
|
4
|
2
|
2
|
Oct 9
|
Sinclair, J
|
§
|
1
|
|||
Total
ITL
|
21
|
46
|
20
|
13
|
|
RBH
in-house fact witnesses
|
|||||
Barnett,
J
|
1
|
1
|
|||
Black,
G
|
1
|
1
|
|||
Chapman,
S
|
2
|
2
|
2
|
3
|
Oct 21, 22, 23
|
Other
|
1
|
1
|
|||
Other
|
0.5
|
1
|
|||
Total
RBH
|
4.5
|
3
|
6
|
3
|
|
JTI in-house fact witnesses
|
|||||
Gage,
P
|
n/a
|
3
|
2012: Sept 5,6,7
|
||
Gentry,
J
|
**
|
4
|
2
|
3
|
Nov 5,67
|
Hood,
J
|
**
|
||||
Hoult,
P
|
**
|
6
|
3
|
***
|
|
Howie,
R
|
**
|
4
|
2
|
1
|
Nov 4
|
Lane,
F
|
**
|
(deceased)
|
|||
Lang,
Ed
|
**
|
||||
Marcotulio,
R
|
**
|
4
|
2
|
||
Massicotte,
GP
|
**
|
1
|
|||
Newman,
L
|
1
|
2.5
|
Nov 20-21 (plus one tba)
|
||
Piehl,
D
|
**
|
||||
Poirier,
M
|
**
|
||||
Robb,
R
|
**
|
4
|
2
|
2.5
|
Nov 18-19-20
|
Sauro,
M
|
0.5
|
||||
Trudelle,
M
|
**
|
1
|
|||
Walker,
W
|
0.5
|
||||
Total
JTI
|
22
|
15
|
12
|
||
Total All
|
71
|
41
|
28
|
||
** Identified on list, but no time
estimate given
*** Will appear later, date and length
not announced.
|
|||||
The trial will resume on November 4, with the return of JTI-Macdonald's former head of research, Ray Howie. An after-the-fact report on the testimony this week by RBH regulatory director, Steve Chapman, will appear here next week.
