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Civil Trial Procedures Mind Map
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Civil Trial Procedures
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Balance of Probabilities
If a minor sues for more than $500, a responsible adult or litigation guardian must act this capacity, but any responsible adult can serve.
Balance of Probabilities
A civil lawsuit involves two parties: the plaintiff, who is suing, and the defendant, who is being sued. If more than one person or party has suffered the harm, all injured parties should sue together as plaintiffs in one action. If more than one person is responsible for causing the loss, they all should be sued as defendants. The process of suing is called litigation, and the parties in the action are litigants.
As in a criminal procedure, the litigants prepare and present the facts of the case. The burden of proof is on the plaintiff; he or she must prove the case. However, the plaintiff is not required to prove the case beyond a reasonable doubt, as is the case in a criminal trial. Instead, the plaintiff must prove the case on the balance of probabilities. This means that as the plaintiff, you must prove that the events took place in the way you claim. The defendant will then try to show that his or her version is what really happened. The judge will then determine which side is more credible or believable.
Filling and Serving a Claim
Filing & Serving a Claim
The Plaintiff must determine if the defendant has a cause of action; that is, a valid reason for suing. If plaintiff finds the defendant has a cause, then they must decide on the proper court in which to proceed. Assume that plaintiff action will begin Small Claims Court. The first step to file a claim must include:
Plaintiff full name and address
Defedant full name and address
The amount of money plaintiff is claiming
A brief, clear summary of the reasons for the claim. The file must be claimed within a certain period of time following the event
,which is called the limitation period
#1
To start a claim against an individual or a party, you must:
1) Decide if you have Cause of Action
that is, a valid reason for suing.
2) Decide on the proper court with which to proceed
dependant on the money involved.
3) File a claim giving basic information including the amount of money being claimed and a summary of the reasons for the claim.
4) Mail or hand-deliver to the court clerk, and then have the defendant served with the same papers
if the defendant agrees that he or she is responsible then a payment can be made in the amount being claimed and everything if finished.
Defence or Reply:
-If not, the defendant must prepare a document clearly stating his or her reasons for disagreeing.
-This must be done within 10-30 days of receiving the summons or claim.
-If there is no response, a default judgement will be awarded to the plaintiff.
Options for Defendant
1) Payment into Court
-the defendant may admit that the plaintiff is owed some part of the claim and settle that amount
-at this point, the plaintiff may accept or pursue the remaining amount
2) Counterclaim
-defendant may countersue, saying that it was actually the plaintiff who is liable (ie car accident)
3) Third Party Claim
-defendant may involve a 3rd party who the defendant feels is partly or completely responsible for the dispute
4) Out of Court Settlement
-at any point either party can make a formal or informal offer to settle out of court instead of going to trial
5) Pre-Trial Conference
-the last attempt to resolve the dispute before trial
-both parties will have an informal meeting with a judge or court-appointed referee who encourages a settlement
-if no settlement is reached, a trial date is set and the parties go to court for a trial by judge alone or with judge and a 6 person jury
6) Default Judgement
If the defendant does not reply to the claim within the required time period, a default judgement is automatically made against him. This means that plaintiff win the action.
- For actions in higher courts, there are additional procedures to help the parties settle their dispute wihtout a trial.
In higher courts, the claim is known as a "statement of claim" and the defence is known as a "statement of defence."
The ligitants send legal documents back and forth over several months, or even years, in an attempt to define and narrrow the disputed issues and to assist the judge in understanding the details of the dispute. Because of this, many cases tried in provincial superior courts take four to six years before reaching trial. Then, the discovery process begins.
Civil Procedures in Higher Courts
The examinatio for discovery is a question-and-answer session for the ligitants and their lawyers. Its purpose is to limit the possibiliy of surprises at trial by providing information about each side's case and to reach agreement onn certain isssues.
This reduces court time, saves money, and make settlement easier. Both parties must disclose all relevant documents. Either party can question the other under oath; the questions and answers are transcribed by the court repoter and are at trial. Either party can also ask the court to issue an order permitting inspection of physical objects in the case. The examinatio for discovery is a question-and-answer session for the ligitants and their lawyers. Its purpose is to limit the possibiliy of surprises at trial by providing information about each side's case and to reach agreement onn certain isssues.
Examination for Discovery
If no settlement can be reached, the parties go to court for a trial by judge alone ro by a judge and civil jury of six people, except in Small Claims Court. However, as mentioned earlier, juries for civil actions are no longer common.
Procedures in a civil trial are similar to those used in criminal trials. Each party has a chance to present his or her case by calling witness; parties can also testify themselves if they choose. The plaintiff goes first, followed by the defedant. when all the evidence has been presented, each party sums up his or her case and makes a final aurgument to the judge. The judge will make a decision and may allow none, part, or all of the claim.
The Trial
In a trial by jury, the judge instructs the jury members on the law applicable to the facts of the case. The jury must consider the evidence, as well as questions such as these:
- Who was at fault?
- Is that person totally at fault, or are both parties somewhat to blame?
- How should damages be determined?
- How much should the damages be?
All these factors must be considered in reaching a judgement. (If there is no jury, the judge does all of the above.)