Action Proceedings: Trial

Question 1

Preparation for Trial

Answer 1

1. Discovery of documents: the parties state and provide which documents they would like to use in court. This is also to ensure that the parties wont be surprising each other in court.
2. Pre-trial conference: Opportunity for minor side issues to be ironed out between the parties before court.

Question 1

Preparation for Trial

Answer 1

1. Discovery of documents: the parties state and provide which documents they would like to use in court. This is also to ensure that the parties wont be surprising each other in court.\
2. Pre-trial conference: An opportunity for certain minor issues/trivial issues to be ironed out before court.

Question 2

Standard of proof in civil probabilities

Answer 2

• the allegations made by the parties must be proven on a balance of probabilities.
• the plaintiff must prove that EG it was more than probable than not that the defendant caused the car accident which damaged the vehicle.
• the scale must lean towards the person whom the burden of proof lies on.
• she who asserts must enforce thus the BOP lies on the plaintiff to prove that the defendant is liable.
• it will only shift to the defendant if the defendant attempts to prove the existence of a valid defense.

Question 3

What are the steps taken in a trial stage?

Answer 3

1. Plaintiff’s case
2. Absolution from the instance
3. Defendants case
4. Argument
5. Judgement and court order

Question 4

1. Plaintiff’s case

Answer 4

• Taking the Oath: Witnesses must declare under oath that they will tell the truth during their testimony.
• witnesses will then be asked a series of question by their own council and the opposing council. ( Questioning of the Witnesses)
• Closure of plaintiff case: The plaintiff may also testify if they choose, after the plaintiff witness have all testified, their legal representative may close the case.

Question 5

1.1 Questioning of the Witnesses

Answer 5

1. Examination in Chief: The plaintiff legal’s representative will question the plaintiff’s witnesses. the witness must give their own account of the events that occurred. no leading questions may be introduced at this stage.
2. Cross-Examination: After the plaintiff’s legal representative questions the plaintiffs witness, the opposing councils legal representative may question them. The purpose is to oppose the examination done before and to establish credibility.
3. Re-examination: The plaintiff legal representative then has another opportunity to question the plaintiff’s witness to clear up any misunderstanding which may have occurred in the cross-examination. No new evidence may be introduced at this stage.

Question 6

2. Absolution from the instance

Answer 6

• the defendant may approach the court to ask for absolution from the instance if they believe that the plaintiff has failed to prove their case or the plaintiff did not submit sufficient evidence to prove their case.
• If this is the case, the trial will end immediately. the plaintiff may if they so wish, initiate another proceeding.

Question 7

3. Defendant’s case.

Answer 7

• if absolution from the instance is not granted, the defendant will proceed with their case.
• the process is the same, the defendants legal representative questions the defendants witness in examination in chief, the plaintiffs legal representative will then cross-examine the witness and the defendants legal representative will have the opportunity to re-examine.

Question 8

4. Arguments

Answer 8

• both parties will have the opportunity to supply the court with reasons as to why the claim (plaintiff) or the defense (defendant) should succeed.
• they are contained in the ‘heads of argument’ which are drafted by each party.
• the ‘heads’ provide a clear and systematic presentation of the legal arguments.

Question 9

5. Judgement and court order.

Answer 9

• the court will give its judgement after the closing arguments.
• the courts may also reserve their judgement for a particular time.
• the court considers the evidence, applies legal principles to the facts and gives its judgement.
• if the plaintiff wins the claim, the court will make a court order.
• by the courts discretion, a cost order may be required.