Wednesday, March 4th, 2009 ::: Law: Strategic Media Suit

Somebody should tell Signe Leisk that a lawyer never asks her client a question if she doesn’t already know the answer he’s going to give.

In Strategic Media’s motion to injunct the City from removing their illegal billboards, Strategic had to prove that removing their illegal signs would cause “irreparable harm” to the company. In his affidavit, Strategic’s Daniel Pitoscia said that Strategic would declare bankruptcy if the company had to rely upon income from signs with proper City permits. But this is what the court said in paragraph 24 of Strategic Media Outdoor Inc. v. Toronto (City):

Mr. Pitoscia’s affidavit evidence was not convincing…. on cross-examination, Mr. Pitoscia retreats from the assertion of bankruptcy in his affidavit and states simply that the business would as a result be “truncated” down to himself and his co-founder. Such a short-term reduction in business pending the determination of the Application is not irreparable harm.

So we looked at the cross-examination of Daniel Pitoscia to see where he retreats from the assertion of bankruptcy and says “truncated.” Funny thing is that during the cross-examination of Pitoscia by the head of City Legal’s Litigation section, Diana Dimmer, he actually says no such thing. Dimmer does get Pitoscia to talk about revenues Strategic could earn from signs for which Strategic has fascia permits, and that did set Pitoscia up for a fall. See, it turns out Pitoscia used the word “truncated,” and did the real damage to himself, in response to a question posed by his own solicitor.

After Dimmer’s cross-examination, Signe Leisk says that she has only one question for her client upon re-examination:

As soon as Leisk hears Pitoscia’s “truncated” answer, she realizes her error and immediately asks:

Sorry, you said you would not be able to exist in your current form?

But Diana Dimmer heard the same thing and doesn’t want Pitoscia to have a chance to change his answer. Look what Dimmer says next:

I do not think you can cross-examine your own client.

Which is exactly what Leisk needed to do at that point to recover, but couldn’t. While Dimmer is speaking, Pitoscia, who by now realizes his error, interrupts Dimmer and says:

We would pretty much be done so…

They would, and they are, because by that time the damage is already done by Leisk’s question.

Now the cool thing about looking at the public file in the Ontario Superior Court is that you are looking at the exact same documents that the judge looked at while writing her decision. As a result, you can basically see the judge think, because you are able to look at every post-it note that the judge affixed to the files, and you can read every note she wrote on the side of the documents. You can also see where she highlighted the text. The document above is a photocopy. The document below is a colour photograph of what Judge Alexandra Hoy did to Leisk’s re-examination:

… which went right into paragraph 24.