civil trial procedure

8/13/2019 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

civil trial procedure

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