civil law: trial procedures
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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 - PowerPoint PPT PresentationTRANSCRIPT
Law 12 MUNDY 2008
Civil Trials – IntroductionCivil lawsuit involves disputes between two
individuals, groups or corporations/organizations called = PARTIES
Party suing = PLAINTIFFParty being sued = DEFENDANTIf 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:
TortsContractsDivorceCustodyDivision of property
Civil Trials - IntroductionUnlike 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 ActionsMinors (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 ClaimsIf 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 - SummonsA NOTICE OF CLAIM is a document filed by
the plaintiff that includes:Defendant’s full name and addressReasons why plaintiff is suingAmount 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 - SummonsAlthough 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 amountPay partial amount (plaintiff chooses whether to
accept)Prepares STATEMENT OF DEFENCEMake a COUNTERCLAIMSeek a THIRD PARTY CLAIMNo response – DEFAULT JUDGEMENT
Small Claims – Payment into CourtIf 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 - DefenceIf 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 - CounterclaimIf 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 ClaimAnother 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 JudgmentThis occurs when defendant does not respond
to summons within timeframeCourt 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 CourtsCivil lawsuits over $25 000 or for more
serious disputes head to BC Supreme CourtIn BC, trial is started by a WRIT OF
SUMMONSFrom here, both parties file documents and
legal papers in preparation for the trial, called PLEADINGS
Higher Courts – Examination for DiscoveryThis 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 procedureTranscripts of these ‘interviews’ are available
to court when in trial
Higher Courts – Out-of-Court SettlementThis is an offer by either side of the claim to
come to a settlement before heading to trialUsually 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 ConferenceLast chance for parties to reach settlement
while avoiding trialLawyers appear before judge, reviewing
case’s detailsJudge 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 - TrialEither 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-examinedOnce all witnesses are called and evidence
presented, sides make summariesJudge/jury reaches a judgement