Courts, Trials, ADR, Process

Question 1

ADR (what does it stand for)

Answer 1

Alternative Dispute Resolution

Question 2

ADR

Answer 2

using private procedures instead of courts to resolve disputes: not as formal and significant than the court

Question 3

Arbitrator

Answer 3

parties have an individual other than a judge in a court, arbitrator adjudicates the law. They have final decision making authority, provide verdict to parties and parties can agree or disagree

Question 4

Mediation (Mediator)
1. How are they appointed
2. What is their role
3. Do they have decision making authority?

Answer 4

1. Agreed on by both parties or selected by a judge or parties select arbitrators and arbitrators select the mediator
2. Neutral third party accelerates the 2 parties to come to a decision, propose a settlement
3. Does not have final decision making authority but can suggest/propose resolution

Question 5

Conciliator - role

Answer 5

Job is to get the parties talking, no suggestions can be made, cannot propose settlement option

Question 6

Settlement

Answer 6

make a deal before going to court. Lawsuit will cost lots of money and time so avoids fees

Question 7

Describe the advantages of ADR (3-5)

Answer 7

• Speed resolution
• cost savings
• choice of the decision making - select someone who is more familiar and educated
• Preserving ongoing business relationship
• confidentiality

Question 8

who remains the most significant dispute resolution parties and how does it affect ADR

Answer 8

courts because they create law. You must always know what the court would decide in order for ADR’s to be effective

Question 9

Adversary System:
What is it for courts

Answer 9

Characteristics of the courts system

Question 10

Adversary System:
parties general function with civil disputes

Answer 10

up to parties to initiate and prosecute litigation to investigate the facts and present proof and legal argument to the decision making tribunal

Question 11

Adversary System:
courts general function with civil disputes

Answer 11

adjudicating the issues submitted to it by the parties apply appropriate sanctions

Question 12

2 assumptions in adversary systems `

Answer 12

1. factual proof and law emerge from bilateral investigation motivated by self interest than from judicial investigation
2. legitimacy and acceptability of a decision will be greatest when made by one who does not have psychological commitment to the case

Question 13

why does the adversary system not always work (3 main points)

Answer 13

1. people aren’t of equal financial stability so unequal lawyers
2. Lying and covering up evidence
3. Self interests can create abuses in procedures

Question 14

how is Court System in Canada organized?
Who has jurisdiction over administration of justice, police force, health etc?
who has right to appoint and pay all county court and superior court judges

Answer 14

Organized according to our constitution
Provincial Legislature
Federal Parliament

Question 15

3 tiers of court in Canada

Answer 15

1. Courts of 1st instance
2. Court of appeal
3. supreme court of canada

Question 16

3 tiers of court in Canada
1. Courts of 1st instance: divided into 2 courts and provide description

Answer 16

a) Provincial Court (traffic, small claim, youth) - establish by provincial legislature appoint by province
b) Court of Queen Bench (plaintiff brings lawsuit and goes against defendant for the first time, and if not happy with decision then appeal)

Question 17

3 tiers of court in Canada
2. Court of appeal

What is heard and not heard?
What is appealer and defendant called?

Answer 17

individual who is appealing the case is called appellant and defending is call respondent. Here you don’t hear evidence, only principles of law

Question 18

3 tiers of court in Canada
3. Supreme Court of Canada
When did it become final appellate court?
What does it require to end the case

Answer 18

Was not final appellate court till JCPC was ceased. Final appellant, need approval and application

Question 19

Who appoints the judges in Canada (supreme court)
and what disputes do they hear?

Answer 19

Prime minister so they think the same way and hear disputes between federal parliament and provincial legislature case

Question 20

Federal Court

Answer 20

replaced exchequer court (tax court), and expanded to trademarks, patents, copyright.

Question 21

2 Problems in Canada with Federal Divisions

Answer 21

1. chaos as don’t know what to sue and can sue in wrong court
2. multiple federal court divisions etc trial, appellate and Supreme Court of Canada

Question 22

Court in Process of Litigation
1) Who may sue

Answer 22

all legal persons, corporations. If incompetent then guardian can sue in your name

Question 23

Court in Process of Litigation
2) Must have standing

Answer 23

special interests to be vindicated (prevents frivolous crimes). Etc if Reis and Eric contract breaks, I cannot sue/instigate them

Question 24

Court in Process of Litigation
3) Class Action

Answer 24

one individual represents group or class of individuals with the same issues (stops courts clogging). Must have COMMON INTEREST

Question 25

Procedural Law

Answer 25

how to engage in law and move it along to achieve remedy in respect to substantive law (dealing with liability).

Question 26

Court Purpose with case process and laws….what do they prefer?

Answer 26

Court process is to discourage a case from going to trial and settle before the court. Use ADR and Mediator

Question 27

Court Process (5 Steps)

Answer 27

1. Engage in the court
2. Defendants issue/file a statement of defence
3. Examination for Discovery
4. Pre-trial conference
5. Trial

Question 28

Court Process: 1. Engage in the court
- What does the Plaintiff issue, to who, what is it and when to be served
- what does the issue include
- what is a Bailiff and what do they do?

Answer 28

Plaintiff issues statement of claims - served to defendant, describe wrong doings and remedy sought, has to be served within 6 months

includes name of plaintiff and identity, defendants name and identity and all material fact you rely on

Official in court of law who keeps order, signs the statement of claims

Question 29

what if defendant avoids the statement of claims

Answer 29

plaintiff gets order of substitutional service for real delivery of service and court will tell you what to do etc newspaper, ads, mail, if outside province then 40days

Question 30

Court Process:
2. Defendants issue/file a statement of defence

what happens if defendant doesn’t file in 20 days?
what is a statement of defence?
what if statement of claims not clear?

Answer 30

Plaintiff automatically wins
Statement is a statement of facts or claim against plaintiff (counterclaim)
if not clear than ask for better particulars though a formal or informal process

Question 31

Describe the Case management

Answer 31

see a judge in chambers and judge organizes next step to promote settlement, then will ask if want case to be mediated -> judge trying to divert case

Question 32

Court Process: 3. Examination for Discovery
- Describe how information is reviewed
- more likely to achieve what
- who is attends this examination and what do they achieve with their role

Answer 32

• each side gets to ask the other relevant questions and therefore both sides have opportunity to have all information of the case
• settlement
• court reporter: information read into evidence, basis for cross examination, see if opposite side is credible or institute the evidence

Question 33

Document Discovery

Answer 33

parties exchange documents they rely on

Question 34

Court Process: 4. Pre-trial conference
- what will a judge who will not hear the case do?
- What does the lawyers submitting case briefs accomplish?
- what if pre-trial fails

Answer 34

• meet with parties in chambers to discuss the case and try to settle it by getting parties to come together
• Judge advances to give idea on what will happen to try and get a settlement
• judge sets a trial date

Question 35

Court Process: 5. Trial
- describe the process of the case
- how are costs awarded

Answer 35

Plaintiff puts their case first then defendant puts theirs and there is cross examination, plaintiff responds to new issues made, trials can very in time length

costs awarded to winner of the case because the lose should have settled rather than going to trial (in addition to the settlement) <- limit litigation

Question 36

Lawsuit Expenses contain 2 types of costs

Answer 36

financial and emotional costs

Question 37

Lawyers charge on 3 basis. What are they and describe

Answer 37

1. hourly rate - per hour basis
2. Block rate - set charge but can be disadvantage as average hourly rate is larger
3. Contingency Agreement - pay lawyer on basis of percentage of money obtained through settlement - overpay as risk for lawyer not receiving anything

Question 38

Does Manitoba have legal aid to help the poor and can it be applied to commercial/common law cases, and what type of program is it

Answer 38

we do have legal aid in Manitoba but it cannot apply to criminal or common law cases. It is a government program

Question 39

Lawyers are known as two types

Answer 39

Barristers and Solicitors

Question 40

What is a barrister lawyer

Answer 40

go to the court and fight to win the case

Question 41

What is a solicitor lawyer

Answer 41

do everything else including hiring your clients (specialists)

Question 42

What is a joint bar lawyer

Answer 42

barrister and entered in roles of solicitor (you are both)