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