Chapter 9: Civil Procedure Sac Study Flashcards
What are 3 purposes of Supreme Court pre-trial procedures?
- To clarify the issues in dispute
- Parties find out the strengths and weaknesses of each others case
- may lead to out-of-court settlement if one of the parties determines its not worthwhile pursuing the case
What are 3 purposes of pleadings?
- Inform defendant an action is being taken against him or her
- inform defendant where the trial will take place and mode of trial
- to assist in reaching an out-of-court settlement where appropriate
What is the purpose of a writ? (3) (pleadings)
- inform defendant that an action is being taken against him/her
- inform the defendant where the trial will take place and the mode of trial (judge or judge and jury)
- usually has a statement of claim attached
what is the purpose of a notice of appearance? (pleadings)
- to inform the court and plaintiff that the defendant wishes to defend the claim
what is the purpose of a defence? (pleadings)
- to inform court and plaintiff the reasons why the defendant is defending the claim (sets out response to each of the allegations contacted in plaintiffs statement of claim)
what are the 3 purposes of directions hearings?
- set a timetable for future steps in pre-trial proceedings so matter can progress towards trial
- hear applications made by parties before going to trial
- allocate a date for trial
what are 3 purposes of discovery?
- require both sides to disclose relevant material to the other side
- encourage out-of-court settlement where appropriate
- reduce the element of surprise at trial and avoid ‘trial by ambush’
what are the 4 main stages of the discovery process?
- discovery of documents (optional)
- interrogatories (optional)
- discovery by oral examination
- medical examination
What are 2 strengths of pleadings?
- provides parties w/ various opportunities for out-of-court settlement
- allow parties to determine s&w of each others case (helps them decide if they should concede certain facts or issues)
what are 2 weaknesses of pleadings?
- long and complex (several documents need to be exchanged)
- cost can be significant (particular if lawyer is used to prepare pleadings documents)
what are 2 strengths of directions hearings?
- ensure timely res. by ensuring parties are completing pre-trial procedures in efficient manner
- judge may order parties attend mediation, encouraging out of court settlement
What are 2 weaknesses of directions hearings?
- can be difficult to understand particularly for self-represented parties
- may be waste of time if court has ordered parties to attend but no issues to discuss
What are 2 strengths of discovery?
- assist parties in understanding s&w of their case and other parties case (discovering documents that support or adverse their case)
- avoids trial by surprise by ensuring parties have access to the relevant documents
what are 2 weaknesses of discovery?
- may take long time to complete (especially if large number of documents)
- significant costs involved in discovery (particularly when number of documents is large)
what are the different types of criminal and civil pre-trial procedures?
criminal - bail, remand, committal hearings
civil - pleadings, discovery, directions hearings
What are 3 similarities between criminal and civil pre-trial procedures?
- both attempt to make the trial fair by ensuring parties have access to the same info and documents
- both provide the court with info about the case before it begins
- both might result in some issues being conceded or some charges being withdrawn before trial
what are 3 differences between criminal and civil pre-trial procedures?
- criminal to provide opprotunity for accused to be released pending trial, civil to encourage out of court settlement
- Criminal to determine if accused wishes to plead guilty or not guitly, civil to provide the court with info about the case before it begins
- criminal accused may not be able to inspect documents and attend directions hearings if remanded in custody, civil this won’t be an issue
what is the purpose of all civil remedies?
to restore the plaintiff to the position he or she was in before the harm occurred
what is the purpose of injunctions? (civil remedy) 3
- to rectify a situation caused by the person found in the wrong or prevent infringement of rights in first place
- to refrain someone from doing something (restrictive)
- to order someone to do something (mandatory)
what are 2 processes that contribute to timely resolution of disputes?
discovery - provide both sides with opportunity to find out details of case against them. could encourage discussion b/w parties that could lead to out-of-court settlement
directions hearings - If some issues are settled in directions hearings, trial becomes shorter as these issued do not need to be settled at trial. The judge can also impose time limits
what are 2 processes that hinder timely resolution of disputes?
discovery - may take significant amount of time to compete (especially when large number of documents)
directions hearings - may waste courts time if ordered parties to attend but there are no issues to discuss
what is one recent change for timely resolution of disputes?
limiting discovery – In the Sup Courts 2011 ‘Green Book’, a statement setting out the requirements of the court, parties are encouraged to agree on limiting discovery to only documents critical to the resolution of the dispute, thus avoiding the time it would take to discover hundreds of documents that are not relevant
what is one reform that could happen for timely resolution of disputes?
greater use of mediation in pre-trial procedures - although already used extensively, can be further used to resolve civil actions faster with little expense. Successful at reducing backlog and helps achieve outcomes in less confrontational manner
what are 2 processes that contribute to effective access to the LS?
court system - courts established to enforce civil rights. Each court has specific jurisdiction that deals with cases in its expertise, ensures parties have suitable and appropriate courts to deal with their disputes
pre-trial procedures - party will have access to pre-trial procedures that may assist them in resolving their case. This may result in out-of-court settlement or help define issues
