Lecture 6

Question 1

What is a retainer?

Answer 1

• 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

Question 2

How much can the retainer be?

Answer 2

more or less than the actual cost.

Question 3

What happens when the retainer is exhausted?

Answer 3

The lawyer requests more from the client.

Question 4

How can you address fee disputes with your lawyer?

Answer 4

• talk to your lawyer
• have a discussion and it will be resolved accordingly

Question 5

What is a solicitor?

Answer 5

responsible for paper contract things. They are non-court related, but can prepare cases for court

Question 6

What is a Barrister?

Answer 6

Handles court cases.

Question 7

Do we need both a solicitor and a barrister?

Answer 7

No. In Canada we can choose one or the other or even both.

Question 8

What is a litigation counsel (lawyer)?

Answer 8

mainly a solicitor

Question 9

What is called to the bar?

Answer 9

the barrister society

Question 10

What are the 4 stages of litigation in civil litigation?

Answer 10

1. pleading stage
2. discovery stage
3. pre-trial stage
4. trial

Question 11

What are pleadings?

Answer 11

documents filed in the court by each party to an action (a lawsuit).

those documents show what info you intend to prove in court

Question 12

What is a statement of claim?

Answer 12

when legal action commences when the first pleading is filed to the court in the registry.

initiates a legal action

Question 13

What info will a pleading contain?

Answer 13

• 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

Question 14

What are the remedies the plaintiff is seeking in a civil matter?

Answer 14

“damages” or money

Question 15

What is included in the basis of the claim?

Answer 15

• 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

Question 16

What happens if the defendant fails to defend by filing the next pleading to the court?

Answer 16

• once the next period is up, the defendant will be noted in default.

Question 17

How long are you given to file a statement of defence?

Answer 17

20 days

Question 18

Who is served the statement of claim?

Answer 18

the defendant

Question 19

Who is served the statement of defence?

Answer 19

The plaintiff’s lawyer

Question 20

Does the plaintiff have the option to reply to the statement of defence?

Answer 20

yes

Question 21

What is included in the statement of defence?

Answer 21

• things the defendant agrees to in the statement of claim
• provide their position and what they deny
• their facts

Question 22

What is an affidavit?

Answer 22

a document of evidence given in writing that has been sworn to by the person who provides the evidence.

Question 23

What is an affidavit of documents?

Answer 23

• 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

Question 24

How many times is the affidavit of documents updates?

Answer 24

several. it is often they need to add to it

Question 25

What happens after the affidavit documents are reviewed by each party?

Answer 25

each side meets up to perform an examination for discovery.

Question 26

Explain the process of examination for discovery.

Answer 26

- 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

Question 27

What are the 3 reasons for having an examination for discovery?

Answer 27

1. to learn exactly what the opposition's case is 2. allows you to assess the credibility and demeanour of parties as witnesses 3. admissions under oath that hurt the opposition's case

Question 28

Explain the steps in the pre-trial stage.

Answer 28

1. Meeting between both lawyers and the judge in the judge's chambers (usually without clients) 2. Figure out availability for a pre-trial hearing 3. Once in pre-trial, the pre-trial judges asks about settlement offers 4. SOMETIMES there is additional meetings with the judge, lawyers, and clients to explain settlement 5. if no settlement, judge asks who and how many witnesses 6. Based on the info above, they agree on a time frame and the judge calls the scheduling clerk to book the pre-trial hearing

Question 29

What requirements are imposed on judges in the trial stage?

Answer 29

the judge cannot be the same as the judge at the pre-trial hearing.

Question 30

What is motion for exclusion of witnesses?

Answer 30

A request that witnesses of the trial remain outside the court room until it is their turn on the stand.

Question 31

When can settlement offers and agreements be made in civil litigation?

Answer 31

1. during the pleading stage 2. during the discovery stage 3. during the pre-trial stage

Question 32

Explain the process of trial (in civil litigation).

Answer 32

1. Plaintiff's lawyer makes an opening statement 2. Plaintiff's lawyer will call the first witness (usually the plaintiff's client) 3. Direct examination 4. Indirect examination 5. Cross-examination 6. Redirect examination 7. Call next witness 8. Once the plaintiff's case is "done" (all their witnesses have gone), the same process is repeated with the defendant's witnesses 9. After ALL witnesses from both parties, follows legal argument

Question 33

What authority does the trial judge have in the involvement in the court room?

Answer 33

- 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

Question 34

What does it mean to reserve a ruling?

Answer 34

The judge needs to review evidence and content of the case before making a decision.

Question 35

Can a ruling be appealed? Why or why not?

Answer 35

Yes! Civil cases can be appealed as of right

Question 36

What is direct examination?

Answer 36

lawyer calls their own witness and questions them

Question 37

What is indirect examination?

Answer 37

leading questions are not permitted and evidence must come from the witness

Question 38

Give a couple of examples of questions that may be asked during indirect examination.

Answer 38

- general, broad questions (i.e., can you explain the events you witnessed on the night of ____)

Question 39

What is cross-examination?

Answer 39

Lawyer from the other side of the witness questions the witness (plaintiff witness = defendant cross-examines)

Question 40

Explain the conditions of redirect examination.

Answer 40

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

Question 41

What is a legal argument?

Answer 41

Each lawyer makes a presentation to the judge about what they believe the judge should consider findings of fact.