Lecture 6 Flashcards
What is a retainer?
- a business practice
- like a deposit or a payment/bill
- lump sum of money requested by the lawyer prior to the case
- it is often asked as an insurance
How much can the retainer be?
more or less than the actual cost.
What happens when the retainer is exhausted?
The lawyer requests more from the client.
How can you address fee disputes with your lawyer?
- talk to your lawyer
- have a discussion and it will be resolved accordingly
What is a solicitor?
responsible for paper contract things. They are non-court related, but can prepare cases for court
What is a Barrister?
Handles court cases.
Do we need both a solicitor and a barrister?
No. In Canada we can choose one or the other or even both.
What is a litigation counsel (lawyer)?
mainly a solicitor
What is called to the bar?
the barrister society
What are the 4 stages of litigation in civil litigation?
- pleading stage
- discovery stage
- pre-trial stage
- trial
What are pleadings?
documents filed in the court by each party to an action (a lawsuit).
those documents show what info you intend to prove in court
What is a statement of claim?
when legal action commences when the first pleading is filed to the court in the registry.
initiates a legal action
What info will a pleading contain?
- names of those involved
- remedies the plaintiff is seeking
- set out the material facts (basic most important facts)
- set out the basis of the claim
What are the remedies the plaintiff is seeking in a civil matter?
“damages” or money
What is included in the basis of the claim?
- what happened
- area of law involved
- breach of contract?
*if read as the defendant, it should be clear what exactly the defendant is being sued for and what facts that claim
What happens if the defendant fails to defend by filing the next pleading to the court?
- once the next period is up, the defendant will be noted in default.
How long are you given to file a statement of defence?
20 days
Who is served the statement of claim?
the defendant
Who is served the statement of defence?
The plaintiff’s lawyer
Does the plaintiff have the option to reply to the statement of defence?
yes
What is included in the statement of defence?
- things the defendant agrees to in the statement of claim
- provide their position and what they deny
- their facts
What is an affidavit?
a document of evidence given in writing that has been sworn to by the person who provides the evidence.
What is an affidavit of documents?
- list of documents involved in the case (should be everything)
- disclosing every single file you have involved in that case
- can’t bring in anything later, so must be laid out now
How many times is the affidavit of documents updates?
several. it is often they need to add to it
What happens after the affidavit documents are reviewed by each party?
each side meets up to perform an examination for discovery.
Explain the process of examination for discovery.
- There is an examination mitigator
- The plaintiff can cross-examine the defendant under oath
- after the plaintiff’s cross-examination, the defendant’s lawyers can cross-examine the plaintiff under oath.
- Undertaking is to look for something that was not originally provided.
- can only question on new information during undertaking
What are the 3 reasons for having an examination for discovery?
- to learn exactly what the opposition’s case is
- allows you to assess the credibility and demeanour of parties as witnesses
- admissions under oath that hurt the opposition’s case
Explain the steps in the pre-trial stage.
- Meeting between both lawyers and the judge in the judge’s chambers (usually without clients)
- Figure out availability for a pre-trial hearing
- Once in pre-trial, the pre-trial judges asks about settlement offers
- SOMETIMES there is additional meetings with the judge, lawyers, and clients to explain settlement
- if no settlement, judge asks who and how many witnesses
- Based on the info above, they agree on a time frame and the judge calls the scheduling clerk to book the pre-trial hearing
What requirements are imposed on judges in the trial stage?
the judge cannot be the same as the judge at the pre-trial hearing.
What is motion for exclusion of witnesses?
A request that witnesses of the trial remain outside the court room until it is their turn on the stand.
When can settlement offers and agreements be made in civil litigation?
- during the pleading stage
- during the discovery stage
- during the pre-trial stage
Explain the process of trial (in civil litigation).
- Plaintiff’s lawyer makes an opening statement
- Plaintiff’s lawyer will call the first witness (usually the plaintiff’s client)
- Direct examination
- Indirect examination
- Cross-examination
- Redirect examination
- Call next witness
- Once the plaintiff’s case is “done” (all their witnesses have gone), the same process is repeated with the defendant’s witnesses
- After ALL witnesses from both parties, follows legal argument
What authority does the trial judge have in the involvement in the court room?
- can ask further questions when lawyers are challenging the findings of fact
- can choose to reserve their ruling
- Judge can stop and ask questions to to the lawyer and/or witnesses at anytime
What does it mean to reserve a ruling?
The judge needs to review evidence and content of the case before making a decision.
Can a ruling be appealed? Why or why not?
Yes! Civil cases can be appealed as of right
What is direct examination?
lawyer calls their own witness and questions them
What is indirect examination?
leading questions are not permitted and evidence must come from the witness
Give a couple of examples of questions that may be asked during indirect examination.
- general, broad questions (i.e., can you explain the events you witnessed on the night of ____)
What is cross-examination?
Lawyer from the other side of the witness questions the witness (plaintiff witness = defendant cross-examines)
Explain the conditions of redirect examination.
If anything new came up in cross-examination, the lawyer who conducted direct examination can redirect and ask question that ONLY cover the new material from the cross-examination
What is a legal argument?
Each lawyer makes a presentation to the judge about what they believe the judge should consider findings of fact.
