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 – 3 rd 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 $ 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