civil litigation

Question 1

list 3 purposes of Discovery

Answer 1

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

Question 2

what are the types of discovery

Answer 2

Discovery of Documents

Discovery of Property

Discovery of People

Question 3

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

Answer 3

Affidavit of Documents
- contains a lawyers certificate and three schedules

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

Question 4

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

Answer 4

the term Document refers to any permanent record

Question 5

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

Answer 5

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

Question 6

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?

Answer 6

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

Question 7

what is a Pre-trial conference

Answer 7

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

Question 8

lift three objectives if a Pre-trial conference

Answer 8

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

Question 9

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

Answer 9

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

Question 10

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

Answer 10

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

Question 11

how long is a Judgment valid for

Answer 11

a Judgment is valid for 10 years

Question 12

what are the parties called to a Judgment

Answer 12

Creditor
- party who is successful and receives a Judgment

Debtor
- party that the Judgment is against

Question 13

what are three things included in a Judgment or an Order

Answer 13

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

Question 14

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

Answer 14

The plaintiff wins by Default

Question 15

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

Answer 15

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)

Question 16

what is a Writ of Possession Form used for?

Answer 16

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

Question 17

what is a writ of delivery form used for

Answer 17

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

Question 18

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

Answer 18

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

Question 19

what must occur before a trial

Answer 19

a pre-trial conference must occur before a trial

Question 20

who may schedule subsequent pre-trial conferences

Answer 20

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

Question 21

who must attend a pre-trial conference

Answer 21

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

Question 22

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

Answer 22

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

the response document to this is an Acceptance of Offer

Question 23

what is the intent of making a formal settlement offer

Answer 23

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

Question 24

what is the double costs rule

Answer 24

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

Question 25

what are privileged documents

Answer 25

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

Question 26

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

Answer 26

you may file a Request to Inspect Documents

Question 27

what are the three default Judgment Forms?

Answer 27

Default Judgment - debt or liquidated demand Default Judgment - recovery of possession of Land Default Judgment - Recovery of possession

Question 28

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

Answer 28

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

Question 29

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

Answer 29

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

Question 30

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

Answer 30

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

Question 31

what is a Notice of Garnishment

Answer 31

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)

Question 32

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

Answer 32

parties in an appeal are called Appellant and Respondent

Question 33

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

Answer 33

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

Question 34

what is an Appeal Book; what does it contain

Answer 34

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

Question 35

who are the parties to a Garnishment

Answer 35

Judgment Creditor Judgment Debtor Garnishee

Question 36

which blank document accompanies a Notice of Garnishment

Answer 36

a Garnishee's Statement

Question 37

describe what a Writ of Seizure and Sale is for

Answer 37

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

Question 38

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

Answer 38

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

Question 39

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

Answer 39

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

Question 40

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

Answer 40

Writ of Seizure and Sale Writ of Possession Writ of Delivery

Question 41

what is a cross-examination

Answer 41

lawyer questions witnesses called on by the other party

Question 42

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

Answer 42

it is a document that initiates an appeal it must be signed by the appellant or the appellants counsel or agent

Question 43

what document is used to commence an appeal

Answer 43

a Notice of Appeal

Question 44

who should be produced for an examination for discovery

Answer 44

each party must produce one person to be examined by the lawyer for the other party - should be someone with knowledge of the matter

Question 45

who chooses the person who is to be examined for discovery

Answer 45

the lawyer doing the questioning may select the person or the other party chooses one for them

Question 46

which document initiates an examination for discovery

Answer 46

Notice of Examination

Question 47

describe three purposes of an examination for discovery

Answer 47

- assess client as potential witness - obtain details - narrow facts/issues and or to attempt to settle

Question 48

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

Answer 48

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

Question 49

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

Answer 49

the parties should exchange mutual releases

Question 50

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

Answer 50

a Notice of Discontinuance

Question 51

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

Answer 51

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

Question 52

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

Answer 52

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

Question 53

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

Answer 53

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

Question 54

who gets to make an opening address at trial first

Answer 54

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

Question 55

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

Answer 55

- merit of the case and chances of winning - ability of the defendant to pay any monetary judgment, if successful