Lesson Plan – Climate Litigation

Environmental Law Lesson Plan: 
CLIMATE LITIGATION

 

Goals

  • Introduce students to the idea of climate litigation;
  • Learn more about the court process; and
  • Gain awareness of environmental issues through a discussion of laws and hypothetical scenarios.

Knowledge Objectives

  • Understand the history of climate litigation; and
  • Read about climate case law from around the world.

Skills Objectives

  • Better able to form and express opinions as to why action on climate change is necessary; and
  • Better able to develop persuasive legal arguments and orally advocate an opinion or point of view.

Attitude Objectives

  • Become more inspired to think about the environmental consequences of various actions; and
  • Understand that law is created through many ways including advocacy and civil debate.

 

Session 1: Introduction to Legal Principles

This lesson was designed to be used after students already have a basic familiarity with the Canadian Charter of Rights and Freedoms. See the lesson plan: Introduction to the Canadian Charter of Rights and Freedoms on the Alberta Environmental Laws 101 website.

The objective of this session is to familiarize students with the law and legal concepts underlying the Court process.

The following fact sheets (included below) should be made available to students for this session:

  • Legal Principles and Institutions
  • Statutes and Common Law Principles

More information can also be found throughout the Alberta Environmental Laws 101 website. It is recommended that students review the website as well as the fact sheets before class.

At the conclusion of Session 1, students should have an understanding of these concepts:

  • Sources of law
  • Difference between common law and statutes and regulations
  • The role of the courts in interpreting laws
  • The obligations imposed by the rules of natural justice and the duty to act fairly.

Following are two discussion questions to begin the session with and a few points that should be included in student’s answers.

  1. What are some examples of laws that affect your daily lives? Why do you comply with these laws? Do you still obey the laws even when you know you likely won’t get caught if you break the law?

Examples of laws that may be familiar to students are the Highway Traffic Act (rules of the road) and the Criminal Code (assault, damage to property etc.)

The purpose of the second and third parts of the question is to provoke students to think about the role of law in society. Reasons why students may consider obeying the laws even when they won’t get caught if they break them are:

  • the recognition that laws are required for an orderly society;
  • if one person breaks the law, then everyone might;
  • fear of punishment by others such as parents; moral or religious objection to the unlawful activity; etc.

 

  1. Our legal process gives the courts the power to interpret the laws passed by elected politicians. Sometimes politicians complain that judges have interpreted the law in a way that was never intended. Is this right? Should we elect our judges to make sure that they reflect public values?

This question should focus student thinking on the relationship between politicians (legislators) and the courts. In Canada, judges are not elected although there are those who advocate for the adoption of the American system where some judges are elected. The argument for a non-elected judiciary is that judges are more independent if they do not face elections; for example, they are more likely to uphold the rights of minorities and to hold politicians accountable to the law. If politicians disagree with the decisions of judges, they have the option of changing the laws through the legislative process. The contrary argument is that elected judges would more accurately reflect the views of the general public.

 

Legal Principles and Institutions Fact Sheet

What is law?

Law includes the most enforceable rules that govern society’s conduct and the organization of our political and social life.

The purpose of law is to maintain a peaceful, orderly and just society. With law and order maintained, the law can help toward the improvement of our individual and community lives.

How is law made?

Law is made by the federal Parliament, provincial legislatures, federal and provincial cabinets and the Courts. The Parliament of Canada and the legislatures of each province pass laws within their respective fields of responsibility laid out in the Constitution of Canada. The federal and provincial cabinets can make regulations which have the force of law when authorized by the legislature to do so. The Courts interpret the Constitution, statutes and regulations, and in doing so make law.

The Constitution sets out the fundamental law of the land. It is made up of rules which determine the type and structure of our government, how it is selected and how government power is distributed and exercised. The Constitution also contains a Charter of Rights and Freedoms which is essentially a Bill of Rights guaranteeing a set of civil liberties.

What types of law do we have in Alberta?

 

Statutes and Regulations:

The laws that are debated and passed by the Legislative Assembly of Alberta or by the Parliament of Canada are called “statutes” or “acts”.

Statutes can authorize Cabinet or a minister to make subsidiary laws to deal with certain specific matters. These are known as regulations or orders. Statues will also prescribe what matters can be dealt with by way of regulation. If the regulation does not conform to these parameters, it will not be enforceable.

Common Law:

Only a part of our law is composed of statutes and regulations. The law also consists of principles that have been established by the courts in decisions on past cases. This body of judge-made law is called the “common law”. The individual decisions which make up this body of law are called “precedents”.

 

Who interprets law?

 

Courts

Generally, it is the courts which are charged with the responsibility of resolving disputes and interpreting the meaning of legislation. Courts deal with both criminal and civil matters. Criminal matters include breaches of the Criminal Code and provincial offences. Civil matters include contract disputes and torts. Courts will also deal with constitutional issues.

Administrative Bodies

Administrative bodies are appointed by the government and obtain their powers from a statute created by government. Administrative law is concerned with making sure that government officials administer their powers according to the principles of law set out in statute and the common law. Although most official bodies in government exercise purely administrative powers, statutes can create tribunals or boards which exercise judicial functions.

Most of these bodies are not courts but do make decisions in a judicial manner after considering presentations or evidence. In most cases, the courts have the power to review the decisions for procedural defects (rather than the correctness of the decision) which are not in accordance with the principles of natural justice or fairness. If the tribunal is found to have made its decision improperly, the court may be able to order a new hearing or other suitable remedy.

 

Statutes and Common Law Principles Fact Sheet

 

Natural Justice

Natural justice is a common law principle created from previous court decisions called precedents. Natural justice means that an affected individual has a right to be heard and all decision makers must be unbiased. The rule against bias means that the decision maker must not decide the matter in their own interest and must appear to be objective and neutral.

A decision will be disqualified only if the bias taints the decision to such a degree that the decision is unreliable. Justice must not only be done but be seen to be done. The court will look at how the decision maker would appear to a reasonable observer in order to determine if there is bias in considering these factors.

Duty to be Fair

The Courts hold that when the rights of persons are affected in a context in which fairness demands that they be given some opportunity to be heard, they would require the hearing process to provide some level of procedural protection to the person affected. This is known as the procedural fairness doctrine.

Procedural fairness is generally thought to require something less than the observation of the full scope of procedural safeguards offered by natural justice. The fairness doctrine enables courts to create procedural safeguards appropriate to the circumstances of each case, using the principles of natural justice as a general guideline.

Like the principles of natural justice, the concept of procedural fairness is variable depending on the type of matter, the type of hearing and the specific content of each case. The requirements for natural justice and the duty of fairness depend on the circumstances of each case. The court decides the content of these rules by reference to all the circumstances under which the hearing operates.

The fundamental rule is that, if a person may be subject to pain or penalties, or is exposed to prosecution or proceedings, or deprived of remedies, or redress, or in some way adversely affected by the investigation and hearing, then they should be told of the case made against them and be afforded a fair opportunity of answering it.

 

Session 2: Introduction to Climate Litigation

  1. Begin with a discussion of current climate litigation cases. Review the page Climate Litigation under the Climate Change section of the Alberta Environmental Laws 101 website for an introduction. Some examples of climate litigation that students can begin with include:

 

  1. Once the students have reviewed some of the ongoing climate litigation, take some time to discuss the Canadian and Charter of Rights and Freedoms which is often the backbone of climate cases. This section may be adjusted if students had recently completed the lesson plan Introduction to the Canadian Charter of Rights and Freedoms.

 

Start with a discussion of the omission of the environment from our Constitution.

The Canadian Charter of Rights and Freedoms, also referred to as simply the Charter, came into force on April 17, 1982. The Charter, based on the rule of law, is part of the constitution of Canada and was written to guarantee all Canadians access to fundamental rights and freedoms. The Charter of Rights and Freedoms is important because it supersedes other laws that are proven to be inconsistent with the Charter. Canadian courts frequently arrive at decisions in which they invoke the Charter to bring Canadian laws into accordance with the principles and values of Canadian society.

Section 32 of the Charter states that the Charter applies to “the Parliament of Canada in respect of all matters within the authority of Parliament…” and “to the legislature and government of each province in respect of all the matters within the authority of the legislature of each province.” Notably, the Charter applies only to government action and not to disputes between private individuals.

Would climate litigation be easier if a right to a healthy environment was included in the Constitution – likely in the Charter of Rights and Freedoms?

Due to the fact that the environment is not currently included in the Charter, climate litigation relies primarily on other sections of the Charter such as in the case of ENvironnement JEUnesse v Attorney General of Canada and the Mathur et al v Her Majesty in Right of Ontario case both of which are relying on Section 7 of the Constitution: “the right to life and security of the person”.

 

Section 7:

  • Divided into three main parts
    • Life – generally understood as the basic right to be alive
    • Liberty – protects an individual’s freedom to act without physical restraint and make important personal choices
    • Security of the person – consists of rights to privacy of the body and its health
  • All three rights included in Section 7 may be compromised if it is done in “accordance with the principles of fundamental justice”. This can be used as a defence and can be argued to ‘justify’ infringing upon a person’s section 7 rights.

 

Limitations on Charter Rights:

  • Section 1: The Oakes Test
    • The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
    • If the infringement is a reasonable limit, the legislation or conduct is “saved” under s. 1.

 

  1. Next, go through an overview of the court room and individuals who will be there.
    • The judge (Provincial Court) or justice (Court of Queen’s Bench, Court of Appeal, Supreme Court of Canada) is in charge of the Court. He or she listens to what is said in court and decides who is more credible.
    • A lawyer works for each side, one lawyer represents the plaintiff (the person who brought the case) and another represents the defendant (the person defending their position). Individuals are also able to represent themselves as self-represented litigants.
    • A witness testifies in court to provide evidence in the case. The witness can be called to give evidence by either lawyer.
    • The public gallery is a seating area in the courtroom where members of the public may sit to observe what happens in court – Canadian court is considered to be an open court.
    • The court clerk helps the judge in the courtroom, for example by making the court schedule, calling the court to order, or other tasks.
    • The court reporter records what is said in the courtroom to be made into a transcript.

 

  1. Explain to the students that, for the following classes, they will be holding a mock hearing based on the climate litigation that they have been reading about. Ensure that they have read the attached case briefs as background and explored the websites if possible.

 

  1. To begin the mock hearing process (this can be done during the first or second sessions depending on time), divide students into groups – (the size of each group will differ by class size and will depend on whether the class will be doing one big hearing or several hearings):
    • One group is representing the plaintiffs – these are the people arguing that climate change is an issue and asking the government for a remedy. (An example would be the group Environnement Jeunesse.)
    • Another group is representing the government, arguing that the government’s actions or inaction are not violating any rights and that the government’s climate change path is the correct one.
    • The third and fourth groups will represent an intervenor (who is not directly a party but applies to have their opinion heard):
      • One intervenor will represent a large oil and gas company who does not want more restrictions on their resource extraction;
      • Another intervenor will represent a conservation group who wants to also talk about the health of our natural environment and the effect of climate change on our local plants and animals.
    • Another group will be the Justices. They will be responsible for hearing the arguments from both sides and making a decision.

 

  1. During this session, students can work all together or in their groups to review current climate litigation and start thinking about their own climate change hearing.

 

Case Summaries

ENvironnement JEUnesse v Attorney General of Canada Case: Summary by ENvironnement JEUnesse

On 28 November 2018, ENvironnement JEUnesse filed an application for authorization to bring a class action on behalf of all Quebec young people aged 35 and under against the Government of Canada. The class action is seeking a declaration that the Canadian government’s behaviour in the fight against climate change infringes on the rights of young people, as well as an order to pay punitive damages.

In January 2019, Justice Gary D.D. Morrison was designated to manage the authorization stage. On 6 June 2019, ENvironnement JEUnesse presented its application for authorization of a class action to the Superior Court of Québec. The Government of Canada also delivered its position against the class action.

On 11 July 2019, Judge Morrison delivered his judgment in which he refuses to grant ENvironnement JEUnesse the authorization to institute a class action on behalf of all young Quebeckers 35 years old and under against the Government of Canada.

Apart from this surprising element, the important issues have been decided in favor of ENvironnement JEUnesse: the judge recognizes that the impact of climate change on human rights is a justiciable issue and that the actions of the government in this area are subject to the Canadian and Quebec Charters of rights and freedoms. On the other hand, with respect for Justice Morrison, it seems clear that youth is more affected by climate change.

ENvironnement JEUnesse, represented pro bono by Trudel Johnston & Lespérance, will appeal the judgment.

Prior to the institution of the class action, the plaintiff must seek and obtain authorization from the Quebec Superior Court. In order to obtain authorization, a class action must:

  1. raise identical, similar or related questions of law or fact;
  2. the facts alleged must seem to justify the conclusions sought;
  3. the proposed class must be large enough that it is not feasible to obtain a mandate from all members;
  4. the representative plaintiff must show that he or she is able to adequately represent the interests of the class.

If a case is authorized to proceed as a class action, the Court will authorize the class action.

In the case ENvironnement JEUnesse vs Canada, according to Judge Morrison, “[i]n having regard to the nature of the class action that [ENvironnement JEUnesse] seeks to exercise and the nature of the alleged infringements of the fundamental rights of the putative members, the choice of the age of 35 by [ENvironnement JEUnesse] as the maximum age of members, leaves the Tribunal perplexed. […] But why choose 35 years? Why not 20, 30 or 40? Why not 60?” (decision, p. 21)

To this question, it goes without saying that a 60-year-old could not qualify as a young person.

ENvironnement JEUnesse will appeal the judgment. It will add about one year to the process.

Subsequently, the case proceeds like a normal case. Timelines vary, but it could take a few years, though we will do our best to ensure that the process comes to a conclusion as quickly as possible given the urgency of the climate crisis.

ENvironnement JEUnesse’s class action has similar foundations to one filed in the Netherlands (Urgenda Foundation vs Kingdom of the Netherlands). Environnement JEUnesse’s action furthermore alleges an infringement of the right to live in a healthful environment in which biodiversity is preserved.

In this case, the plaintiffs are young residents of Quebec aged 35 years and under. In this respect, the action brought by ENvironnement JEUnesse is similar to a lawsuit filed in the United States (Juliana et al. vs United States of America).

 

“The Trial of the Century”: A Preview of how Climate Science Could Play out in the Courtroom, Courtesy of Juliana v. United States – Summary by Michael Berger and Jessica Wentz of the Sabin Center for Climate Change Law

In Juliana v. United States, twenty-one individual youth plaintiffs filed a lawsuit in federal district court in Oregon against the United States, the president, and various other federal officials and agencies, claiming that the “nation’s climate system” is critical to their rights to life, liberty, and property; that the federal government has violated their substantive due process rights by allowing fossil fuel production, consumption, and combustion at “dangerous levels;” and that the government has failed to fulfill its obligations under the public trust doctrine. As a remedy, the plaintiffs asked the court to compel the government to develop a plan to reduce carbon dioxide (CO2) emissions so that atmospheric CO2 concentrations will be no greater than 350 parts per million by 2100 – a science-based target consistent with the goal of limiting global warming to 1.5 degrees C.

The plaintiffs’ attorneys at Our Children’s Trust have dubbed their case the “trial of the century.” The U.S. Department of Justice, under both the Obama and Trump administrations, argued that no trial should take place at all. The district court denied the defendants’ motion to dismiss, finding that the plaintiffs had raised colorable constitutional claims; after initial discovery had been conducted, the court denied (in significant part) defendants’ motions for summary judgment and judgment on the pleadings, affirming the earlier decision that plaintiffs raised valid claims and finding genuine issues of material fact that warrant a trial. But, after repeated attempts by the government to gain interlocutory appeal at the 9th Circuit and the Supreme Court, the district court’s decisions denying the U.S. government’s dispositive motions will now be reviewed by the 9th Circuit. It is possible that the trial will never happen.

And so the question lingers: What would the “trial of the century” look like? What are the key scientific questions that the parties would seek to answer? Where would the points of agreement and contention lie? And how would all of this factor into determinations on the plaintiffs’ standing to bring their suit, and the nature and extent of the government’s responsibility? As it turns out, the two sides have produced a documentary preview of the potential answer. In preparation for trial, the plaintiffs submitted over one thousand pages of expert reports detailing the fundamental science of climate change, observed and projected impacts, and the ways in which the U.S. government and the fossil fuel industry have contributed to the problem. In response, the defendants submitted hundreds of pages of their own expert reports contesting the reliability, soundness and validity of the plaintiffs’ submissions. And in response to that, the plaintiffs submitted a Notice of Supplemental Disputed Facts to the court, arguing that between these two sets of documents various questions of material fact were in dispute, requiring a trial. With all of that in hand, the district court thought, and still thinks, a trial is warranted. In the remainder of this post, we summarize the key proffers and points of contention, providing a glimpse of at least part of what these, or other, plaintiffs’ day in court might eventually entail.

The Pleadings: Two Key Issues of Fact

Plaintiffs’ case, and their ability to bring their case to court, hinge on two factual issues: (1) the extent to which the U.S. government can be deemed responsible for greenhouse gas emissions that are causing anthropogenic climate change, and (2) the extent to which anthropogenic climate change is responsible for the specific injuries or harms suffered by the individual plaintiffs. In a major research project being conducted with Radley Horton, a climate scientist at the Lamont-Doherty Earth Observatory, these concepts are defined as “source attribution” (the attribution of anthropogenic climate change to specific sources) and “impact attribution” (the attribution of particular impacts to anthropogenic climate change).

In regards to source attribution, the plaintiffs in their Complaint emphasize the magnitude of the emissions at issue, noting that fossil fuel emissions from U.S. energy consumption had climbed from to 4.7 billion metric tons of CO2 in 1987 to 5.4 billion metric tons in 2014, and that if the government had acted on expert recommendations from the early 1990s on limiting CO2 emissions, it could have reduced emissions 35% from 1987 levels by 2015.

In regards to impact attribution, a substantial portion of the Complaint is dedicated to explaining how climate change is affecting and will affect plaintiffs’ lives, liberty, and property interests, to support both their standing to sue and the merits of their claims. The Complaint alleges existing and projected impacts on each of the individual youth plaintiffs, such as adverse impacts on a farm where one works and intends to pursue a livelihood; lost income for a family that works at a ski resort with dwindling snow; and asthma attacks from the increased frequency of forest fires in Oregon, a result of hotter and drier temperatures.

The Battle of the Experts

In support of plaintiffs’ “source attribution” allegations and their claims concerning the U.S.’ contribution to climate change, Dr. James Hansen prepared a lengthy expert report and an accompanying co-authored paper on Assessing “Dangerous Climate Change”: Required Reduction of Carbon Emissions to Protect Young People, Future Generations and Nature. Hansen cites research finding that the U.S. is an “unambiguous leader” in cumulative GHG emissions, having generated approximately 25% of emissions since 1751 (“more than double that of China, which falls second in the ranking”) and that the U.S. alone is responsible for a 0.15°C increase in global temperature, and discusses emission reduction targets for the U.S. based on a global climate budget. Dr. Hansen also discusses impacts such as sea level rise but does not explicitly quantify the proportional contribution of the United States to those impacts.

The question of the U.S. government’s responsibility for climate change is further explored in an expert report from Peter Erickson, a scientist at the Stockholm Environment Institute. He notes that the U.S. produces a substantial quantity of “territorial” emissions but that this is an incomplete indicator of responsibility for climate change. He calls for consideration of the United States’ consumption emissions, which are approximately 20% higher than territorial emissions in recent decades (due to the emissions from the production of goods imported into the U.S.), and notes that the country also bears some responsibility for emissions from the burning of fossil fuels produced in the United States. Erickson further notes that the U.S. has contributed to climate change by leasing and subsidizing the production of fossil fuels, but does not quantify the effect of those leases and subsidies on climate change (vis-à-vis global mean temperature change) or its impacts.

In response, the defendants’ experts argue that the plaintiffs’ experts fail to specify the degree to which U.S. government conduct was responsible for climate change or the plaintiffs’ alleged injuries; and fail to demonstrate that the U.S. government could provide adequate redress for the alleged injuries through policy and regulatory actions. In particular, the defendants’ experts state that the plaintiffs’ experts attributed increasingly frequent and severe water shortages, wildfires, droughts, and heat waves to U.S. government conduct without specifying the degree to which these events were caused or exacerbated by anthropogenic forcing on climate, let alone the specific contribution of the U.S. government. They also dispute the share of global emissions attributable to U.S. government action or inaction. One expert estimated that the U.S. government was responsible for no more than 4% of global emissions and that the other 96% of emissions were generated by: (i) countries other than the U.S., or (ii) fossil fuel consumption by entities other than the federal government that would have occurred regardless of federal policies and regulations. Another expert estimated that, even under a consumption-based accounting approach, the share of emissions attributable to the U.S. government was only 5 percent.

There is also a good deal in the plaintiffs’ expert reports that goes to proving impact attribution, and in some cases plaintiffs’ experts link observed impacts directly to a specific plaintiff’s alleged injuries. Plaintiffs’ experts draw relatively robust linkages between climate change and some alleged injuries based on downscaled climate impact data – for example, one expert presents data on historic and projected sea level rise in the town where one plaintiff lives,  and another discusses attribution studies linking specific extreme events that affected plaintiffs to anthropogenic climate change. In other instances, linkages are derived from qualitative inferences about how broader trends related to climate change have affected or will affect the plaintiffs. For example, with respect to a plaintiff who has had to move from her home in Cameron, Arizona because the springs her family depended on for water are drying up, one expert notes that the “pattern of drought in places like Arizona is directly linked to climate change.” Similarly, experts reporting on public health impacts note that the youth plaintiffs, like all children, are at a higher risk of certain health problems such as asthma due to climate change. In some cases, statements about impacts on plaintiffs are based on observed trends and impacts without reference to peer reviewed attribution studies that specifically examine the extent to which anthropogenic influence on climate is responsible for those observed trends and impacts. For example, one expert stated that snowpack had declined at ski resorts used by a plaintiff without citing research attributing the observed declines at those particular resorts to human activities (the assumption being that any change in snowpack is likely caused, at least in part, by the warming trends caused by rising greenhouse gas concentrations).

In response, the U.S. government’s experts argue that the plaintiffs’ experts failed to establish a conclusive link between anthropogenic climate change and the plaintiffs’ alleged injuries for two main reasons. First, the defense’s experts contend that the plaintiffs’ experts over-rely on inference, finding causal connections based on observations and general trends. For example, as plaintiffs point out in their Notice of Supplemental Disputed Facts, filed after the U.S. submitted its documents, one defense expert challenged the conclusions in an expert report on the psychiatric and medical consequences of climate change, asserting that the report “never directly links any of the consequences to any individual plaintiffs” and thus the impacts “remain theoretical possibilities, reported in various studies of natural disasters, but not conclusively identified in any of the Plaintiffs.” Second, the defense’s experts argue that the plaintiffs’ experts fail to account for other confounding factors that may have been responsible for the injuries, such as the effects of population growth and migration, forest and water management practices, and wildfire and flood protection practices on observed hydrological and ecological changes such as increases in wildfire severity and decreases in water supply.

What Next?

Ultimately, the district court found “that plaintiffs have provided sufficient evidence showing that causation for their claims is more than attenuated;” that “the ultimate issue of causation will require perhaps the most extensive evidence to determine at trial;” and that “[a] final ruling on this issue will benefit from a fully developed factual record where the Court can consider and weigh evidence from both parties.” But, even without the “trial of the century” moving forward we can see the contours of the “battle of experts” such a trial would entail. Plaintiffs’ primary goal with its expert testimony is to establish that the defendants are responsible for a meaningful contribution to climate change – an amount sufficient to prove causal relationships that satisfy the standing requirements and the even more demanding standards for showing a violation of public trust obligations and/or constitutional rights – and that climate change is the legal cause of specific injuries suffered by the plaintiffs. Defendants’ strategy is to undermine the reliability of plaintiffs’ proffers, and their tactic is to poke holes in plaintiffs’ expert reports by challenging the methodologies and results of plaintiffs’ source attribution studies, questioning the extent to which particular impacts have been (or can be) directly attributed to climate change, and highlighting the importance of confounding factors in creating any injuries suffered by the plaintiffs. We expect these lines of reasoning will predominate in this and other climate cases that seek to assign blame, force action, or recover damages for climate change.

For now, though, we expect to hear from the 9th Circuit on the validity of the constitutional and public trust claims. The courtroom battle over the science of climate change will have to wait for another day.

UPDATE: On January 17, 2020, the majority of the Ninth Circuit Court of Appeals found that an Article III court was not the proper venue for this case stating that instead, the plaintiff should look to their elected representatives. The dissent disagreed, arguing that the court had standing to offer a remedy. Notably, both the majority and the dissent found that climate change is real, is happening, and is being worsened by the activities of the government. The plaintiffs have confirmed that they will be appealing the decision so stay tuned for future updates and check out the decision here.

 

Session 3: Prep for your Day in Court

The objective of Session 3 is to give students the opportunity to work in their groups to prepare a strategy for the hearing and plan their presentations before the court.

In summary, these actions will take place in Session 3:

  • Teacher will discuss elements of strategy with class.
  • Students will work in groups to develop strategy and prepare a point form outline.
  • Students will present their group strategy to the class or group by group with the teacher.
  • Students prepare written outline of their presentation for the Court/student Justices to review their material and answer questions.
  • Students plan their oral presentation for the Court.
  • Teacher advises students of procedure to be followed at the hearing next class(es).

At the beginning of the class, teachers should briefly discuss with students the difference between their group strategy and the actual presentation that they will make. A strategy is the plan that each group will develop to achieve its objectives. A strategy can involve many actions; some will be designed to achieve short-term objectives and others will be directed at long term actions. Each group will likely choose a combination of strategies.

A suggested plan for students to follow in developing their group strategy is:

  1. Determine group objectives.
  2. List group strengths and weaknesses as they relate to objectives – this task requires students to relate their group characteristics to the court process and the likelihood of achieving their objectives through the hearing process.
  3. Identify needs – students should ask themselves what resources would compensate for their weaknesses in respect to the upcoming hearing such as more information; financial resources; media and public support (will depend on which interests they are representing).
  4. Plan actions – students should present their initial strategy to either the teacher or other students. Each group should prepare a written strategy although it need not be lengthy and can be in point form. This can also be used by the teacher as part of their evaluation.

More information can be found on the worksheet “Developing your Case Strategy”.

After developing their strategies, students should prepare their presentation for the Court. Each presentation should deal with these matters:

  1. A summary of the group’s position
  2. The reason for this position
  3. A summary of any evidence that will be presented at the hearing – this can be in the form of evidence from mock experts, demonstrable evidence such as photos, etc.
  4. The group’s conclusions.

Note: the evidence that students use can be created in groups or can be drawn from other class work. The actual evidence is not the point of the exercise but is rather a way for students to practice their advocacy and start thinking more about how to argue about constitutional issues.

The written presentation plans can also be used by the teacher for grading purposes. In a real hearing, the groups’ positions would be circulated in advance to the Justices and other participants. At the teacher’s option, the material can be circulated in advance.

During Session 3, the student panel of judges should spend their time familiarizing themselves with the Constitution and the court process. They should carefully read the material provided to them and the past decisions provided to them in case summaries.

At the end of Session 3, the teacher should advise students of the procedure that will be followed during the hearing. Depending on the time available, teachers may want to stage a full hearing, however, teachers should be wary of embarking on a full hearing process. One, it will be very time consuming. Two, it is likely that students will have some difficulty differentiating between the various stages in a hearing; for example, they may not understand the difference between evidence and argument. As well, the prospect of cross-examination may be distracting for students. It is not an objective of this exercise to teach laws of evidence and civil procedure but rather to get students thinking about the constitution and environmental law. However, it may be appropriate for the Justices to ask questions of clarification at the end of each presentation. If teachers want to stage a full hearing, there is more of an explanation in the worksheet “Plan for a Full Hearing” attached.

For most classes, it is suggested that a simplified procedure for the hearing will be the most effective and contribute most directly to the project’s objectives. A simplified procedure will consist of:

  • Opening of the trial – one student can volunteer to act as the clerk, they will say: “Please rise. Court is now in session, Justices _______________ presiding.” Everyone remains standing while the Justices walk in, the Justices bow to the Court and the Court will bow back and once the Justices sit, everyone else may sit as well (this part of the trial is optional but may help the students feel more involved in the roleplay).
  • A brief introduction of the day from the Justices.
  • An oral presentation to the Justices by each student group. The plaintiff should go first but the teacher can determine the order of the remaining presentations – the teacher should also set the time for each presentation (5 – 10 minutes should be adequate). Students can refer to the Justices as “Justice _________” or as My Lord or My Lady.
  • At the end of each presentation, the panel can ask one or two questions for clarification.
  • At the conclusion of the formal presentations, a short (approximately 2-5 minutes) response by each student group can be made.
  • After a short time for deliberation, the student Justices should give an oral decision.

 

Developing your Case Strategy

A case strategy is a detailed and accurate story of what occurred in the case at trial. It is how you tell the story of your side of the matter. [1] In a civil case, Plaintiffs must present a case theory that shows they are entitled to the relief that is sought in their complaint. Defendants must present a case theory to show that the plaintiffs do not have enough evidence on a balance of probabilities. The balance of probabilities means that plaintiffs must show that their story of the evidence is more probable than not – at least 50% plus 1.

A good case strategy is:

  1. Based on strong facts and inferences that can be fairly drawn from these facts;
  2. Built on facts that are not subject to much dispute;
  3. Takes into account and explains away as many unfavourable facts as possible;
  4. Accepted by the trier of fact without having to stretch the imagination; and
  5. Not based on wishful thinking.

To develop a case theory:

  1. Construct a factual chronology of the case – what happened in chronological order.
  2. Analyze the case from a common-sense perspective by asking:
    • What’s the essential wrong or unfairness to the client?
    • Does this unfairness suggest any causes of action or defenses that are not obvious to you?
    • Identify any facts that make the case special or more appealing?
    • Identify any theme or unifying principle that these facts suggest.
    • Identify the legal theories.
    • Identify the elements you must prove to prevail on each cause of action or defense.
    • Identify the facts that support the elements, opponent’s rebuttal to these facts.
    • Identify the theory of the case.
  3. Repeat the process to anticipate your opponent’s theory of the case.

 

Plan for a Full Hearing (Optional)

 

Name: ______________________________ Date: ____________________

Preparing for a Mock Trial[2]

Directions: Read the following explanations of the components of a mock trial. Use the notes and questions to prepare for your role in the class mock trial.

 

Opening Arguments

In their opening statements, attorneys representing both sides introduce their case to the judge as clearly and persuasively as possible. It is given in the future tense, as in “testimony will show” or “evidence will show.” The statement is not intended to be argumentative, but rather to lay out a general picture of the facts.

Questions to consider: Why are you being taken to trial or being tried? In what ways has the defendant done injury to your client? In what way is the plaintiff mistaken in its case against you? Why should your client be found not responsible, or why should the defendant be found responsible? What evidence do you intend to present and what witnesses to you intend to call to support your case? How will you prepare to counter the opposing side’s opening arguments during the next phase?

 

Presenting Evidence and Questioning Witnesses

In this phase, the plaintiff and then the defense lays out its case. This is your chance to question witnesses from your side.

Questions for attorneys to consider: Why are you questioning these witnesses? What do you hope their testimony will show? What questions will you ask? What questions will you try to avoid? Why? How might you try to ask questions in a way that might help the truth come to light? What else do you need to consider in questioning the witnesses?

Questions for witnesses to consider: What is your background and/or relationship to the case? How do you feel about the defendant and the case? How does the case affect you directly? Do you have any stake in the outcome? Do you have any particular motive here?

 

Cross-Examination and Redirect

This is your chance to question witnesses from the opposing side.

Before the trial, attorneys should try to anticipate witness testimony to prepare a list of prospective questions to ask when you cross-examine and redirect witnesses. During the trial, take note of witness testimony so that you are ready for cross-examination and redirect.

 

Closing Statements

Here the attorneys summarize their main arguments, highlighting the main pieces of evidence in the case, to try to persuade the judge to support your perspective and rule in your favor.

Questions to consider: How did the evidence support your argument? What specific points did opposing counsel offer that you can directly refute? What do you hope to gain from winning the case? Why should the judge decide in your favor?

The usual order is:

  1. Opening statement
  2. Plaintiff side witness
    • Defence cross-examines
  3. Defence side witness
    • Plaintiff cross-examines
  4. Closing statement

 

Deliberation and Verdict

The judge considers the evidence and delivers a verdict and, if appropriate, a recommended sentence. The judge might prepare a statement to explain the verdict and put it into context.

Questions to consider: What evidence was most compelling? Why? Which side made a stronger case?

 

Session 4: Presentation Day

The objective of session 4 is to provide students the opportunity to participate in a mock hearing. In addition, at the end of the hearing, the students will debrief through discussion and review their experiences.

Once the hearing starts, the process will be under the control of the panel. However, the teacher should have the students arrange the classroom to be set up to resemble a hearing room. There should be one table at the front facing the class for the Justices to sit at. There should be two additional tables facing the panel – one of the plaintiffs and one for the government. The intervenors can be seated at tables behind the two main groups and will take their turns coming up to the front to speak.

At the close of the hearing, the Justices should be given a few minutes to reach a decision. They can give a short oral decision which should be followed by a written decision with a deadline to be determined by the teacher. The decision should include the Justice’s reasons for coming to its decision and the evidence that it relied on. The decision should be submitted to all student groups and to the teacher.

It is important that there is a debriefing session following the mock hearing and panel decision. The hearing process can be quite troubling for some students as it forces them to face the difficult concepts of climate change. Students quickly become committed to the position of their student group and can be disheartened if their view is not adopted by the Justices. Although this is a typical response to a real hearing, students should be given the opportunity to express their feelings and concerns about the process and the decision. They should be encouraged to move beyond their disappointment in “losing” or satisfaction in “winning” to assess the process and their participation. Hopefully, they will also consider the application of their experience in real world examples of climate litigation.

 

DEBRIEF DISCUSSION QUESTIONS

Discussion questions that can be used by the teachers in the debriefing are:

  1. Did the hearing process give all participants a fair opportunity to present their views?
  2. Were any parties at a disadvantage in presenting their position? Did others have an advantage?
  3. Was the adversarial process the best way to present information to a panel?
  4. Was the group strategy effective? What else could have been done?
  5. Are there any alternative processes which would result in better decisions?
  6. Are there any community processes where this new knowledge could be applied?

 

 

 

[1] With reference to: Classroom Law Project, “Mock Trial in the Classroom – Strategies” online: https://classroomlaw.org/resources/mock_trial_strategies/.

[2] With reference to: Sandhya Nankani & Holly Epstein Ojalvo, “In Any Case: Conducting a Mock Trial” (4 October 2010) The New York Times online: https://learning.blogs.nytimes.com/2010/10/04/in-any-case-conducting-a-mock-trial/.