CHAPTER 1 Emond Montgomery Publications 1 Advocacy and the Litigation Process

Introduction Trials result from disagreement between plaintiff and defendant as to the facts of a case Judge: makes findings of fact, applies relevant law, comes to a decision Example of facts in a civil dispute: Kitchen Renovation Case Emond Montgomery Publications 2

The Kitchen Renovation Case Tina Fey and her husband hired Baldwin Brothers Construction to make some minor renovations to their kitchen for a total contract price of $7,500 The work is now completed but the Feys and the Baldwins have a disagreement about payment for the installation of three pot lights Tina claims that the contract price included the installation of all necessary lights in the kitchen Baldwin Brothers Construction claims that the contract required them to install five pot lights only, and that the three additional pot lights that were requested were extra and to be paid for separately Tina has paid the original contract price but refuses to pay any more Emond Montgomery Publications 3

The Trial The parties cannot resolve this disagreement, so Baldwin Brothers Construction has started a Small Claims Court action claiming $750 for the cost of supplying and installing the three disputed pot lights The judge must decide whether to grant judgment to the plaintiff for the $750 First the judge must determine what exactly the parties agreed to based on the evidence presented by the parties in court The parties did not have a written contract. Tina Fey and Alec Baldwin were the only people present when the oral contract was made, and they each have a very different understanding of what they agreed to Emond Montgomery Publications 4

The Decision The judge listens to each party’s retelling of the events and chooses which version to believe Parties’ stories can differ if one of them is lying, but more often stories differ because parties remember the events differently The judge will believe the story that makes more sense It is the advocate’s role to present the client’s story in the most persuasive way After determining the facts of the case, the judge will arrive at a decision by applying the relevant law to the facts It is the role of the advocate to advise the judge of the applicable law and suggest how that law should be applied to the facts Emond Montgomery Publications 5

Advocacy and the Litigation Process Advocacy: the process of presenting a case or defence at a trial or hearing before a civil court, a criminal court, or an administrative tribunal Advocate: a person who pleads the cause of another before a court or tribunal Paralegals may act as advocates at tribunals and lower-level courts Emond Montgomery Publications 6

Advocacy and the Litigation Process (cont’d) Substantive law defines legal rights and obligations contract law tort law family law real estate law criminal law Procedural law deals with the way in which a dispute first comes to a court or tribunal and is then brought forward to a final resolution at a trial or hearing Law of evidence: deals with how the facts (as required by substantive law) are to be proved Emond Montgomery Publications 7