Civil Trial Procedure
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Transcript of Civil Trial Procedure
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Law 12
MUNDY 2008
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Civil Trials - Introduction Civil cases consider following disputes:
Torts Contracts
Divorce
Custody
Division of property
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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 minorsbehalf
As well, if minor is sued, court will appoint an adult,usually parent, to act as LITIGATION GUARDIAN
(guardian ad litem)
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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 compensationthat would be accepted by the courts
Courts will recommend that parties attempt to solve
their own dispute through alternative disputeresolution methods (negotiation, mediation, etc.) firstbefore bringing case before courts
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Small Claims Court - SummonsA NOTICE OF CLAIM is a document filed by the
plaintiff that includes:
Defendants full name and address
Reasons why plaintiff is suing
Amount he/she is claiming
Plaintiff is charged a small fee for filing a notice ofclaim for case, but can add costs to amount of claim
Becomes a SUMMONS delivered to defendant
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Small Claims Court - SummonsAlthough sheriffs or bailiffs deliver summons to
defendants, nowadays the plaintiff is responsible fordelivery
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
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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 acceptpayment and drop balance of claim OR
Plaintiff will continue to sue to obtain balance of claim
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Small Claims - Counterclaim If defendant, upon receipt of summons, believes that
plaintiff is actually at fault, will file aCOUNTERCLAIM
This document must be related to situation outlined inoriginal claim out of which dispute originates
Similar to SUMMONS, a counterclaim must detail
reasons for, along with amount suing for
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Small Claims
3rd
Party ClaimAnother option is for defendant to include a THIRD
PARTY (a party allegedly involved in dispute that hasnot been listed as defendant already by plaintiff)
Defendant brings in third party in event that he/shebelieves that dispute was caused by such party eitherpartially or fully
Once listed, third party will be included in disputewhen it goes to court
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Small Claims
Default Judgment This occurs when defendant does not respond to
summons within timeframe
Court then automatically finds plaintiff to have wonthe action/claim and will order for amount listed insummons by plaintiff IF A DEBT
If not a debt, court will hold a DEFAULT HEARING to
determine award
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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
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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 courtreporter at court registrars office
Purpose is to find out strength or weakness of eachsides case
Questioning is similar to criminal procedure Transcripts of these interviews are available to court
when in trial
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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 iscompleted, as lawyers have a better sense of their sidesprobability of winning case in trial
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Higher Courts
Pre-Trial Conference Last chance for parties to reach settlement while
avoiding trial
Lawyers appear before judge, reviewing cases detailsJudge then gives possible settlement, if case were to
head to trial (judges opinion)
If pre-trial conference occurs, different judge will be
appointed to trial (if no settlement agreed upon byend of this conference)
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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