Chapter 2 Flashcards
What is the order of events related to a lawsuit?
1) before lawsuit
2) pleadings
3) discovery
4) trial
5) collections
6) appeal
who can sue?
adults, even noncanadians
some companies, but usually not unincorporated ones
how often do lawsuits fo to trial? lawyer responsibility?
sooo rarely!
if gone to trial, something already gon ewrong –> role of lawer is to solicit a good contratect to maximize coproate poilicies to minimize liaility
What is a class action? where allowed? benefits?
single person or small group can sue on behalf of a larger groujp f claimants
–> most canadaiqn provinces allow them
benefits:
- small individuals can take on large orgnazaiorns
- cost effective to sue for small but widespread claims
- threat of class action can curtail big biz behaviour
What are class acction criteria?
- Common issues: among all class members
- Representative plaintiff: who demonstrates workable plan for fairly representing all class members’ interests
- Notification: to all potential members of class
- Preferable procedure: to traditional litigation
- Certification: by court to allow class action to proceed
What options are there for eing represented in the court? details for each?
1) self represetnation: only an ok idea for simple matters, “a self-represented person has a fool for alawyer and a fool for a client”
2) lawyer rep: tnhey need to have passed the bar and have completed training
- they are govered by provincial law societites
- communications are confidential and privileged
3) paralegal rep: non-lawyer, havent passed thr bar, providing legal advice only within areas allowed (by regulations etc)
What happens before the lawsuit?
a) determine the parties (plaintiffs, defendants, litigation reps, unknown parites)
b) determine where to sue (sometimes obviouslt in place where law occurred, but other factors such as contracts that require law ocnducted in another area) –also check prov court or court of K bench
c) write and send demand letter = demand payment, solidifies the cause of action and evidence to court that you asksed and didnt receive, puts defendant on notice
What are types of pleadings and who are they filed by?
- Statement of Claim – Filed by Plaintiff
- Statement of Defence – Filed by Defendant
- Counterclaim – Filed by Defendant
- Statement of Defence & Counterclaim – Filed by Defendant
- Third Party Claim – Neither Plaintiff nor -Defendant, but a 3P
- Reply – Filed by Plaintiff
- Demand for Particulars – Any Party
What is a statement of claim? what is statement of defense?
SoC = how the plaintiff starts a lawsuit, it outlines the dispute and states facts and desired remedies
SoD = Sets out defendant’s version of facts and denies liability
how long can you sue? why
2 years! from date plaintiff would have discoverd the cause of action – limitations act restricts it to this
- you can sue after, but defense can call limitations act and plaintiffs claim gets thrown out!
What are responses to SoC and SoD? What do for them?
counterclaim = defendant makes agianst plaintiff, not only deny having done harm, but also claim harm was done to them *can be combined with SoD (ex: argue who responsible for car accident)
statement of defense TO counterclaim = plaintiff prepares to defend aganist counterclaim, include desired relief as well
What is a 3rd party notice?
say it wasnt yo or me at fault, it was a third party –> they are then brought into litigation and become 3rd party defendants
can parties do anything if pleadings are confusing?
yes! can do a demand for particulars = require opposing side to provide additional information or clarify pleadings
What happens in the discovery part of the process?
1) both plaintiff and defendant serve each other an Affidavit of Records = sworn statement with a list of all relevant records and material for lawsuit (have, can get, and not privileged)
** privileged = things not necessary to disclose like lawyer client conversations
2) Questioning = bring peopel to law office and under oath with court reporter there to answer questions from opposition to get more info and context – open probing questions = **Fact finding!
What is the order of steps in the trial?
1) opening statements
2) plaintiff presents case
3) defense presents case
4) plaintiff possibly get change to respond to new info
5) closing statements
6) judge makes decision
7) parties draft formal order
What happens when either party is presenting the case?
- present evidence
— put people on the stand and ask questions
— opposing party allowed to cross examine
— admit documents to the court - then argue why that evidence meets the legal test and proves their argument!
What are the 3 considerations for evidence?
a) oral or documentary?
– doc = statement of facts filed with court and relied on as sworn testimony (test. :. can be cross examined) (affidavit)
– oral = testimony on the stand with person under oath during trial
b) witnesses lay or expert?
– lay = testify to facts of what occurred (saw, know, etc.)
– expert = because occupation makes them a pro, they can give opinino on the facts themselves (must be accepted as an expert by the court)
c) admissibility of evidence: has to be RELEVANT and MATERIAL aka relate to lawsuit itself and provide info that actually can be used
what is hearsay?
= only parties with direct knowledge can provide evidence
**ensures they can be tested on the evidence
ex: I cant be tested if i take stand and say “Blake was busy at the time of the crime” because I dont actualy know, and they cant test for more details like “where was he” or “what time did he leave”
Whta is the burden of proof for criminal and for civil litigation?
criminal = beyond a reasonable doubt
civil = balance of probabilities (more likely than not :. 50% + 1
What happens in the collection stage of the process?
winning does not guatrantee you will get paid! winning party has to enforce the judgement and get help getting money from the loser
What is the order of the courts and what are their functions?
prov court for things under 50k
appeal from there to court of kings bench
appeal from there to court of appeal
appeal from there to Supreme Court of Canada
What are new roles of the parties once appealed
appealing party is the appellant
responding party is the respondent
either can be original defendant or plaintiff
What is the process of an appeal?
1) appellant orders transcripts of orig hearing to before the judge **bc no first hand evidence! only based on what was shown in first trial
– also looking at the reasons fro judge for ruling
2) appellant and plaintiff each file:
— Extracts of Key Evidence = stuff from record they think is most important
— Book of Authorities = al the case law they plan to rely on
— Factum = written arguemtn of the law and waht orig judge got wrong and what remedy should be
What is an intervener?
3rd party, who have interest in the lawsuit such that court allows them to argue the law also with additional documents
ex: lawsuit abt lawyer responsibility to client, law societies, bar association gonna have a stake in that
