civil trial process Flashcards
1) dispute
occurs between two private parties or legal entities, it is alleged that one party has committed a civil wrong causing harm to one another.
2) letter of demand
plaintiff sends a formal letter or formal communication regarding the nature of the dispute and the remedy being sought.
3) ignore
if the defendant has no intention of accepting the liability, he/she may simply ignore the letter.
4) summons and statement of claim
the plaintiff begins formal civil proceedings with a summons, lodging an application in the appropriate court, either the Magistrates, District or Supreme court.
5) defence
defendant lodges a legal document called an appearance which is their intention to reject the claim or contest the action.
6) discovery
both sides request documents from the other party.
7) pre-trial conference
compulsory conciliation occurs to try and avoid further formal proceedings. If not successful, this stage assists the parties to clarify their arguments and set a date for trial.
what is the role of the judge in a civil trial?
the judge is determiner of fact and must determine the fact on the balance of probabilities.
who has the burden of proof?
the plaintiff has the burden of proof, to prove the defendant committed the private wrong and is liable to provide a civil remedy.
what are the different judgements in a civil trial?
case not proven - case against defendant is dismissed
case proved - defendant is liable
liability is apportioned between parties
what are the different civil remedies?
special damages: where a specific amount of money can be worked out for economic loss (eg. medical costs).
general damages: non-economic loss, aimed to compensate the plaintiff for conditions such as pain and suffering.
injunction- compel an action to occur (eg, order a media company to remove an article about someone).
post trial / legal costs
legal arguments about legal costs occur at this stage. as a common law rule, the unsuccessful party generally pays the legal costs of the successful party. Although, this is subject to statutory conditions and judicial discretion.
post trial / execution of enforcement of a judgement
if the defendant does not pay a judge may choose to issue a
- warrant for sale: the court can order specific assets to be seized and then sold.
- garnishee order - the court can order that the prescribed sum of money is withdrawn from an employee’s pay each period by the employer.
post trial / appeal
both parties have a right to appeal the decision of the trial judge in an appellate court.
