Civil Litigation and Trial Process PDF

Civil Litigation and the Trial Process Subject LS 101 Type Lecture Ontario: 52 locations plus satellite, belonging to 8 judicial regions; civil, criminal, family, small claims...

Civil Litigation and the Trial Process Subject LS 101 Type Lecture Ontario: 52 locations plus satellite, belonging to 8 judicial regions; civil, criminal, family, small claims Ontario Superior Court of Justice: hears all civil proceedings. Commercial matters, personal injury, bankruptcy and insolvency cases, and litigation involving wills and estates Governed by the Rules of Civil Procedure and/or particular legislation The Divisional Court: a branch of the Superior Court of Justice, where the judicial review happens Statutory and some civil appeals from administrative tribunals in Ontario Involves civil appears of $50,000 The Small Claims: cases under $35,000 Civil Litigation and Trial Process Majority of the civil cases do not make it to trial, too time-consuming and costly (chances of payment is small) System also screens out cases, forcing plaintiffs and defendants to settle. E.g., the implementation of mandatory mediation process of Ontario Steps in the Civil Litigation Process - Superior Court Level Civil Litigation and the Trial Process 1  Early Stage: to uncovers much information as possible before trial, identifying factual and legal issues of the case Both parties are informed of the action Most cases require a lawyer, to help you navigate each step, paperwork, and appropriate motions Pre-Trial Procedures: in Ontario, an action is started by filing a writ of summons (usually, cases are settled before trial) Plaintiff fills out motion, authorized by a court registry Must serve the warrant to the defendant in person 20 days to respond, if there is no response, they give default judgement. Judge decides $$$ Making a Statement of Claim Plaintiff outlines allegations, damages, provides supporting documentation (aka the pleadings) $243.00 in Ontario Defendant must respond to this statement. Counter Claim: The defendant prepares statement of defense, filed with court registry Copy is sent to plaintiff Pre-Trial Motions Lawyers are typically involved and will request further information from either party Lawyers also engage in pre-trial motions to dismiss the proceedings and ask for change in venue. Discovery During Pre-Trial Examinations of documents by lawyers Involve testimony and questioning under oath of both parties Civil Litigation and the Trial Process 2  Detailed questions although lawyers can object to a line of questioning, if irrelevant Objective - to make available all evidence and allegations (no surprises) Transcribed and included as evidence as trials Alternatives to Trials In-Chamber Meetings: common for lawyers to approach judge to explain why a settle cannot be reached Judges will question the merits of the case, point our weaknesses, and pressure both sides to come to an agreement (AKA judicial settlement conference) This is not a trial! Judges may order payment of legal fees; discourage proceeding to trial Admit Guilt: defendants can also make payment to the court if they admit to lesser damages than claimed by the plaintiff Admission of guilt has value If the judges rule that the damages are what the defendant has agreed to pay, he/she may award some amount of costs to he defendant. Rejective Offer to Settle Pre-Trial: the judge may order extra costs against a defendant who rejects an offer to settle The judges may order costs against the plaintiff when the judgement... EXAMPLE: the plaintiff is using for $1000, the defendant make an offer to the plaintiff to settle for $850 plus costs. The offer to settle is make in writing and is served on the plaintiff more than 7 days before trial. The plaintiff does not accept the offer to settle. At trial the judge awards the plaintiff $750. After the judge gives the judgement, the defendant shows the judge his offer to settle. The judge awards the defendant costs of $100. We are trying to be fair, not leaving any party destitute. Civil Litigation and the Trial Process 3  Trial Similar to criminal trials - testimony, cross examinations Heard by judges unless a personal injury case (jury) Strict Rule of Evidence: your lawyer may not use leading questions by the lawyer doing cross examination can E.g., you were in a rush to get to work that day, weren't you? ------ how would you describe your driving that day? Heresy is inadmissible Appeals: made on questions of law but not based on questions of fact. In error in law has occurred, then an appeal may be granted. Costs of appeals are prohibited since transcripts alone can run into thousands of dollars. The appellant launches the appeal and the respondent replies to the action Courts can uphold the original decision, new trial, overturn decisions Enforcement: the winner must take steps to get his/her money. It is difficult if defendant is broke or has creditors also fighting for remaining funds. Cost of action may not be worth the reward if the defendant avoids payment If person has money/assets, the winner can take steps to garnish wages or bank accounts. Civil Litigation and the Trial Process 4