Ch. 14 - Dispute Resolution & Expert Evidence

Question 1

Litigation

Answer 1

The use of the court system to resolve disputes

Question 2

Pleadings

Answer 2

documents filed in court in a lawsuit or included in a trial record. Only docs seen by court prior to trial commencing. Give judge basic understanding of nature of dispute.

Question 3

Pleadings include the following documents

Answer 3

statement of claim, statement of defense, reply, demand for particulars, interrogatories, and motions.

Question 4

Statement of Claim

Answer 4

(aka Notice of Civil Claim in BC, Complaint in US) doc that identifies the parties, the allegations that form the basis of the claim, and nature of the relief sought. Used in commencement of litigation process.

Question 5

Plaintiff

Answer 5

the party or parties filing the statement of claim against the defendants

Question 6

Defendant

Answer 6

party or parties against whom a remedy is sought.

Question 7

Statement of Defence

Answer 7

doc setting out the legal basis for denying the claim upon receipt of the statement of claim from plaintiff(s).

Question 8

Third-Party Claim

Answer 8

pleading set out against a third party

Question 9

Third Party

Answer 9

a party to a lawsuit that is added to the case by the defendant rather than by the plaintiff.

Question 10

Interrogatories

Answer 10

a series of written questions sent by one party to another, which the other party must answer under oath. Are sent shortly after pleadings phase is complete to obtain prelim answers and to find out which witnesses are knowledgeable about various aspects of the case.

Question 11

Discovery of documents

Answer 11

the ongoing process of identifying documents that are relevant to the litigation. Ends shortly before trial. Once demand for DOD is served, party must produce all docs except privileged docs.

Question 12

Examination of discovery

Answer 12

an oral cross-examination of a representative of the opposing party, conducted prior to trial. May take a day or several weeks. Court reporter makes transcript of Q&A for use during trial and to allow both parties to assess all evidence before trial.

Question 13

Alternate Dispute Resolution (ADR)

Answer 13

any process of resolving a dispute other than litigation, like arbitration, mediation, etc.

Question 14

Arbitration

Answer 14

a private litigation or trial process in which the parties set the rules & choose the judge, called the arbitrator. can be cheaper, quicker than litigation, voluntary, mandatory if in contract, non-binding

Question 15

Arbitrator

Answer 15

a private judge.

Question 16

Arbitration process steps

Answer 16

choose arbitrator, set terms of reference, agree on procedural rules, agree on applicable law

Question 17

Negotiation

Answer 17

discussion aimed at resolving a dispute, usually through compromise. Full control of procedures by parties, cheapest & quickest, always voluntary, no uncertainty once it reaches settlement

Question 18

Mediation

Answer 18

an assisted negotiation process in which a neutral third party facilitates settlement discussions. Cheaper, quicker than litigation, non-binding, can be voluntary, mandatory if in a contract. Expert mediator who assists negotiation & needs trust from all parties. Effective at resolving simple & complex disputes

Question 19

Expert Witness

Answer 19

a person with skill, expertise, training, and experience who is hired to provide an opinion to the court or to an arbitration tribunal. Key in virtually all negligence trials. Expert testimony is exception to ‘no-opinion’ rue of evidence. Has duty to court - fairness & neutrality, must not advocate for any party

Question 20

Mini-trial

Answer 20

a condensed version of a trial in front of a judge alone, at which parties may present evidence. Judge gives non-binding ruling based on evidence and an idea of probable outcome of a complete trial from which parties can decide to proceed with litigation.

Question 21

Settlement Conference

Answer 21

an informal meeting or, in some jurisdictions, a formal mediation process with a judge. Judge assists parties to settle case before litigation.

Question 22

Recommendation to avoid litigation

Answer 22

be a good communicator with your client

Question 23

Reasons to avoid litigation

Answer 23

bad for business, hard on nerves, cant be completely controlled, can be long, expensive, risky, uncertain, lost. Its public & hard on reputation

Question 24

Going to Court - Steps in process

Answer 24

consulting counsel –> gathering facts & law –> choosing the forum –> plaintiff vs. defendant(s*) –> starting statement of claim –> pleadings –> counter claim/ 3rd-party claims –> costs –> examinations for discovery & document Discovery –> the trial: rules of evidence/experts –> Judge/jury: decision balance of probabilities –> appeals –> enforcement