Civil Law: Trial Procedures

Civil Law:Trial Procedures Law 12 MUNDY 2008

Civil Trials – Introduction • Civil lawsuit involves disputes between two individuals, groups or corporations/organizations called = PARTIES • Party suing = PLAINTIFF • Party being sued = DEFENDANT • If group of people are separately harmed by defendant’s actions, they may sue together in one case called a CLASS ACTION LAWSUIT • Process of suing = LITIGATION

Civil Trials - Introduction • Civil cases consider following disputes: • Torts • Contracts • Divorce • Custody • Division of property

Civil Trials - Introduction • Unlike criminal trials which examine guilt based on “beyond a reasonable doubt”, civil trials present case to find guilt based on “balance of probabilities” • “balance of probabilities” means that judge or jury determines guilt based on whose version of events is more credible (more likely to happen)

Minors and Civil Actions • Minors (under 18) cannot sue nor be sued directly. • Thus, minor must have a representative called a NEXT FRIEND who will take civil case to court on minor’s behalf • As well, if minor is sued, court will appoint an adult, usually parent, to act as LITIGATION GUARDIAN (guardian ad litem)

Civil Procedure in Small Claims • If person wishes to seek civil litigation (sue), he/she must find if there is “CAUSE FOR ACTION,” • = meaning if there is a reason to seek compensation that would be accepted by the courts • Courts will recommend that parties attempt to solve their own dispute through alternative dispute resolution methods (negotiation, mediation, etc.) first before bringing case before courts

Small Claims Court - Summons • A NOTICE OF CLAIM is a document filed by the plaintiff that includes: • Defendant’s full name and address • Reasons why plaintiff is suing • Amount he/she is claiming • Plaintiff is charged a small fee for filing a notice of claim for case, but can add costs to amount of claim • Becomes a SUMMONS delivered to defendant

Small Claims Court - Summons • Although sheriffs or bailiffs deliver summons to defendants, nowadays the plaintiff is responsible for delivery • Upon receipt of summons, defendant has options: • Agree to pay full amount • Pay partial amount (plaintiff chooses whether to accept) • Prepares STATEMENT OF DEFENCE • Make a COUNTERCLAIM • Seek a THIRD PARTY CLAIM • No response – DEFAULT JUDGEMENT

Small Claims – Payment into Court • If defendant decides to pay partial costs, he/she will pay the amount to the Small Claims Court office • Court will notify plaintiff who can either accept payment and drop balance of claim OR • Plaintiff will continue to sue to obtain balance of claim

Small Claims - Defence • If defendant refutes claim (feels he/she does not owe anything to plaintiff), defendant will prepare a STATEMENT OF DEFENCE • This document outlines reasons for disagreeing with claim • Must be filed within 14 days of receiving summons

Small Claims - Counterclaim • If defendant, upon receipt of summons, believes that plaintiff is actually at fault, will file a COUNTERCLAIM • This document must be related to situation outlined in original claim out of which dispute originates • Similar to SUMMONS, a counterclaim must detail reasons for, along with amount suing for

Small Claims – 3rd Party Claim • Another option is for defendant to include a THIRD PARTY (a party allegedly involved in dispute that has not been listed as defendant already by plaintiff) • Defendant brings in third party in event that he/she believes that dispute was caused by such party either partially or fully • Once listed, third party will be included in dispute when it goes to court

Small Claims – Default Judgment • This occurs when defendant does not respond to summons within timeframe • Court then automatically finds plaintiff to have won the action/claim and will order for amount listed in summons by plaintiff IF A DEBT • If not a debt, court will hold a DEFAULT HEARING to determine award

Civil Procedure – Higher Courts • Civil lawsuits over $25 000 or for more serious disputes head to BC Supreme Court • In BC, trial is started by a WRIT OF SUMMONS • From here, both parties file documents and legal papers in preparation for the trial, called PLEADINGS

Higher Courts – Examination for Discovery • This process involves summoning witnesses by wither side of dispute to question them = DEPOSITION • Done by lawyers for each party in presence of court reporter at court registrar’s office • Purpose is to find out strength or weakness of each side’s case • Questioning is similar to criminal procedure • Transcripts of these ‘interviews’ are available to court when in trial

Higher Courts – Out-of-Court Settlement • This is an offer by either side of the claim to come to a settlement before heading to trial • Usually made after the examination for discovery is completed, as lawyers have a better sense of their side’s probability of winning case in trial

Higher Courts – Pre-Trial Conference • Last chance for parties to reach settlement while avoiding trial • Lawyers appear before judge, reviewing case’s details • Judge then gives possible settlement, if case were to head to trial (judge’s opinion) • If pre-trial conference occurs, different judge will be appointed to trial (if no settlement agreed upon by end of this conference)

Higher Courts - Trial • Either party can elect to have a jury (only in BC – may be denied, cannot be used for contracts, real estate, custody cases) • Similar procedure to Criminal trials: • Witnesses are called to the stand and examined, cross-examined • Once all witnesses are called and evidence presented, sides make summaries • Judge/jury reaches a judgement

Civil Law: Trial Procedures