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civil litigation final > civil litigation > Flashcards

civil litigation Flashcards

1
Q

list 3 purposes of Discovery

A
  • help narrow issues, facts or evidence
  • obtain admissions
  • to settle a matter, if possible
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2
Q

what are the types of discovery

A

Discovery of Documents

Discovery of Property

Discovery of People

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3
Q

Which form do we use to discover documents and what does it contain? how do we create this document?

A

Affidavit of Documents
- contains a lawyers certificate and three schedules

  • must use Form 30A or Form 30B in the Court of King’s Bench
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4
Q

what does the term “Documents(s)” refer to in the discovery process

A

the term Document refers to any permanent record

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5
Q

what is the purpose of the lawyers certificate in an Affidavit of Documents

A

ensures that the lawyer has explained the importance of making a full disclosure of all documents to their clients

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6
Q

in what circumstances may a physical and/or mental examination of parties for discovery purposes be obtained? what must you obtain before an examination may be carried out?

A

examination may be made when the physical or mental condition of a party is in question

  • you must obtain any written report made by practitioner who has treated them
  • and obtain any results of any tests made
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7
Q

what is a Pre-trial conference

A

it is a conference where counsel for each party meets with a judge to discuss the status of the civil proceeding

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8
Q

lift three objectives if a Pre-trial conference

A
  • to identify and simplify issues
  • to avoid wasteful or unnecessary pretrial activities
  • to ensure the matter is ready for trial
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9
Q

will the judge who conducts a Pre-trial conference be the same as the judge who will conduct a trial

A

the same Pre-trial Judge will be the same judge who will conduct the trial

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10
Q

what are the two decisions of the court and in what situations are they used?

A

order
- decision of the court in a motion
- occurs “in the middle” of a proceeding

Judgment
- decision of the court in an Action/Application
- final decision to a civil proceeding

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11
Q

how long is a Judgment valid for

A

a Judgment is valid for 10 years

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12
Q

what are the parties called to a Judgment

A

Creditor
- party who is successful and receives a Judgment

Debtor
- party that the Judgment is against

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13
Q

what are three things included in a Judgment or an Order

A
  • name of the judge or officer who made it
  • date it was made
  • the particulars necessary to understand the decision
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14
Q

what happens when a Defendant is served with a Statement of Claim, but they do not respond in any way nor do they file their Statement of Defence

A

The plaintiff wins by Default

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15
Q

When a Plaintiff wins a case by default, which document(s) would they file?

A

they would file a Requisition for Default Judgment

(this calculates pre-judgment interest the Plaintiff is entitled to, plus principal and costs owed to them, and interest rates)

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16
Q

what is a Writ of Possession Form used for?

A

Writ of Possession form is used for delivery of possession of land

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17
Q

what is a writ of delivery form used for

A

a writ of delivery is used to seize possession of personal property from the Debtor and delivered to the Creditor

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18
Q

what is a Pre-trial brief and what does it contain

A

the initiating party of a pre-trial conference must file and serve a pre-trial brief

this contains:
- copies of all pleadings
- statement of facts and legal issues
- estimated duration of the trial

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19
Q

what must occur before a trial

A

a pre-trial conference must occur before a trial

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20
Q

who may schedule subsequent pre-trial conferences

A

the pre-trial judge can schedule subsequent pre-trial conferences

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21
Q

who must attend a pre-trial conference

A

each lawyer representing a party and who is responsible for the conduct of the matter must attend

as well as the same pre-trial judge

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22
Q

which document is used to make formal settlement at a pre-trial conference? what is the response document to this

A

the document used to make a formal settlement is an Offer to Settle

the response document to this is an Acceptance of Offer

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23
Q

what is the intent of making a formal settlement offer

A

it is made to take advantage of the “double costs” rule

24
Q

what is the double costs rule

A

to encourage settlement prior to trial

  • if a party does not accept a formal offer, and lose at trial, they risk paying even more to the successful party
25
Q

what are privileged documents

A

privileged documents are documents that the party has or had in their possession but they object to producing on the basis of privilege

26
Q

after reviewing the opposing party’s affidavit of documents, what can you file and serve on the opposing party in order to see copies of documents listed in the Affidavit of Documents

A

you may file a Request to Inspect Documents

27
Q

what are the three default Judgment Forms?

A

Default Judgment
- debt or liquidated demand

Default Judgment
- recovery of possession of Land

Default Judgment
- Recovery of possession

28
Q

which document does a Judgment Creditor file in order to help determine the best method of execution of a Judgment

A

Order for Examination in Aid of Execution

  • summons the debtor to court
  • instructs debtor to bring documents with them to assist in the oral examination
29
Q

what kind of questions can the Judgment Creditor ask the Judgment Debtor during an Examination in aid of Execution

A

may ask questions about the Judgment Debtor’s property, finances, banking information etc.

30
Q

describe what the purpose of a Certificate of Judgment is and where this is filed

A

The certificate of Judgment forms a lien on the Judgment Debtors real property, it is filed against the title of the Judgment Debtor

31
Q

what is a Notice of Garnishment

A

it is a court order that directs money of the Garnishee (third party) to be seized to satisfy a debt owing by the debtor

(the garnishee will deposit the money directly to the court)

32
Q

how are the parties in an appeal document described in the heading

A

parties in an appeal are called Appellant and Respondent

33
Q

How are the parties to an appeal referred to in the body of a Notice of Appeal

A

The parties are referred to in the manner they are described in the court appealed

34
Q

what is an Appeal Book; what does it contain

A

notice of appeal
pleadings, affidavits, orders
notice of cross appeal

35
Q

who are the parties to a Garnishment

A

Judgment Creditor
Judgment Debtor
Garnishee

36
Q

which blank document accompanies a Notice of Garnishment

A

a Garnishee’s Statement

37
Q

describe what a Writ of Seizure and Sale is for

A

it is when a sheriff is directed by the court to seize personal property from the Judgment Debtor

items taken are then sold at a judicial sale and the proceeds would be paid to the Judgment Creditor

38
Q

why is the Writ of Seizure and Sale an expensive method of execution

A

there are fees charged by the Sheriff for its services and is deducted from the sale of seized belongings

there may also be fees for towing, storage, auctioning, advertising

39
Q

once the Judgment Creditor has received all monies owing to them, what will they file with the court

A

They will file a Notice of Satisfaction once the Judgment is satisfied

40
Q

what are three options a Garnishee may select in their Garnishee’s Statement

A

Writ of Seizure and Sale

Writ of Possession

Writ of Delivery

41
Q

what is a cross-examination

A

lawyer questions witnesses called on by the other party

42
Q

what is an initiating document and who must sign it, with respect to appeals

A

it is a document that initiates an appeal

it must be signed by the appellant or the appellants counsel or agent

43
Q

what document is used to commence an appeal

A

a Notice of Appeal

44
Q

who should be produced for an examination for discovery

A

each party must produce one person to be examined by the lawyer for the other party

  • should be someone with knowledge of the matter
45
Q

who chooses the person who is to be examined for discovery

A

the lawyer doing the questioning may select the person

or the other party chooses one for them

46
Q

which document initiates an examination for discovery

A

Notice of Examination

47
Q

describe three purposes of an examination for discovery

A
  • assess client as potential witness
  • obtain details
  • narrow facts/issues and or to attempt to settle
48
Q

in what circumstances may you inspect property for the purposes of discovery? what must you obtain before you can inspect property

A

you may inspect property for the purpose of discovery if it is necessary for the proper determination of an issue

  • a Motion
49
Q

what should the parties exchange if a settlement is reached at a pre-trial conference

A

the parties should exchange mutual releases

50
Q

which document should the Plaintiff file if a settlement is reached at a Pre-trial Conference

A

a Notice of Discontinuance

51
Q

If the parties are going to proceed to trial, what must each counsel serve on their own witnesses, including their own client

A

If the parties are going to trial, each counsel must serve their own witnesses with a Subpoena to Witness

  • this requires the person to attend the trial at the time and place specified
52
Q

what may happen if neither party shows up at a scheduled trial

A

if both parties do not show up, the Judge may Adjourn or dismiss the claim and counterclaims

53
Q

what may happen if the Plaintiff or Defendant do not show up at a scheduled trial

A

if the Defendant does not show up, the judge may dismiss any of their counterclaims, and allows the Plaintiff to prove their claim

if the Plaintiff does not show up, the judge may dismiss the claim and allow the Defendant to prove their counterclaim

54
Q

who gets to make an opening address at trial first

A

the Plaintiff is given the first opportunity to make and opening address

55
Q

what two things will a lawyer take into consideration before taking on a case

A
  • merit of the case and chances of winning
  • ability of the defendant to pay any monetary judgment, if successful
56
Q
A

civil litigation final (2 decks)

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