Roles of Key Personnel in Civil Law

Question 1

Main roles of the judge

Answer 1

• Case management
• Remain unbiased
• Apply the rules of evidence and procedure
• Direct the jury
• Determining liability and awarding remedies

Question 2

Case management elaboration

Answer 2

• Give directions to parties
  
  • Filing a document by a certain time
  • Discovery processes
  • Order them to attend mediation
• Ensuring correct procedure
• Limit the examination of witnesses
• Limit the number of witnesses
• Hand down a ruling

Question 3

Applying rules of evidence and procedure elaboration

Answer 3

• Determining admissibility of evidence
• Ensuring witnesses are examined/cross-examined
• Giving directions on how evidence is to be presented and what documents the jury can see
• Providing clarity on these rules

Question 4

Strengths of the role of the judge

Answer 4

• Independent judges and magistrates ensure trials are conducted without bias and in line with rules (impartiality)
• Judges and magistrates are required to ensure that these rules are applied to each party equally (formal)
• Case management powers, such as time limits on document presentation or ordering mediation, results in lower costs and time in resolving a dispute (engagement)

Question 5

Weaknesses of the role of the judge

Answer 5

• They rely on parties to present all relevant facts and evidence during trial, and if a party is without representation, this may fail to occur (impartiality + participation)
• They are still vulnerable to certain subconscious biases and potentially discriminate against certain parties (impartiality + formal)
• Their trials can be costly or time consuming, making them difficult to utilise (engagement)

Question 6

Similarities between the roles of the judge in civil and criminal trials

Answer 6

• Both are independent and impartial
• Both are required to ensure the procedure of that court is followed
• In both types of law, they may be required to direct a jury

Question 7

Differences between the roles of the judge in civil and criminal trials

Answer 7

• In civil law, the judge has far broader case management powers in pre-trial, such as ordering documents or mediation, whereas in criminal, the judge has no control over committals
• In criminal, the judge can determine guilt or a sanction, whereas in civil, they determine liability and remedies

Question 8

Roles of the plaintiff

Answer 8

• Party control
  
  • The power to determine the course of proceedings by parties
  • This can involve choosing which court to bring their claim to, what evidence to present and which witnesses to use
• Disclosing information to the defendant
  
  • It is the responsibility of the parties to ensure all relevant documents are presented to the courts as per the Civil Procedures Act 2010 (Vic)
  • Could involve documents such as medical records, texts, emails and photographs and this responsibility continues throughout the trial
• Presenting evidence
  
  • The parties must present all evidence to the judge throughout the trial, along with the jury if one has been requested
  • Involves both lay and expert witnesses

Question 9

Roles of the defendant

Answer 9

• Party control
  
  • The plaintiff also has party control over how they wish to present their side of the case
  • They can choose what evidence to raise, what witnesses to use and what defence they would like to use
• Disclosing evidence
  
  • The defendant has the same duty to ensure all relevant documents are presented
• Present defences
  
  • The defendant can present defences to the judge throughout the trial if they would like to

Question 10

Strengths of the roles of the parties

Answer 10

• Parties to a civil dispute have control of their own case and are responsible for deciding what facts to present and how to present them (participation)
• Both parties must abide by court processes and procedures (formal)
• Courts provide some general guidance to parties who are representing themselves regarding court processes to allow them to better engage with the justice system and its processes (engagement + informed basis)

Question 11

Weaknesses of the roles of the parties

Answer 11

• Self represented parties may not understand which documents are relevant and therefore may fail to disclose relevant evidence to the court (impartiality)
• Not all parties are equally equipped to present their case to a judge and jury without the assistance of legal practitioners (formal)
• Institutions that promote access to justice for parties of low socioeconomic status, such as Victoria Legal Aid, are often unable to support parties in civil disputes (engagement + informed basis)

Question 12

Similarities between roles of the parties in civil and criminal

Answer 12

• Responsibility to Present Evidence – In both criminal and civil cases, the prosecution (criminal) and plaintiff (civil) must present evidence to support their claim, while the defense (criminal) and defendant (civil) challenge that evidence
• Right to Legal Representation – The accused (criminal) and defendant (civil) can hire legal representation, just as the prosecution (criminal) and plaintiff (civil) often do
• Decision by a Judge (or Jury) – In both cases, a judge (or sometimes a jury) listens to arguments from both sides and makes a final decision based on the evidence and legal arguments presented

Question 13

Differences between roles of the parties in civil and criminal

Answer 13

• Who Initiates the Case – In criminal law, the prosecution (representing the government) files charges against the accused, whereas in civil law, a private individual or entity (plaintiff) sues another party (defendant)
• Burden of Proof Responsibility – The prosecution in a criminal case must prove the accused’s guilt “beyond a reasonable doubt,” while in a civil case, the plaintiff only needs to prove their case “on the balance of probabilities.” The defense in a criminal case doesn’t have to prove innocence, whereas a civil defendant may present counterarguments or evidence
• Level of control - In civil law, the plaintiff and defendant have significant control over how they want to present their case, whereas in criminal, strict procedures apply that limit the adaptation of the prosecution and accused.

Question 14

Roles of the jury

Answer 14

• Remain objective
  
  • The jury should be independent and unbiased throughout the proceedings and when determining the verdict
  • Those who believe they cannot remain impartial must ask to be excused
• Listen to evidence, directions and submissions
  
  • The jury must ensure that they listen to all evidence presented so that the verdict reached is based on relevant evidence and fact
  • They can take notes and keep track of information through listening to directions given by the judge and explanations of key concepts
• Determine liability
  
  • To determine whether the defendant is responsible for the plaintiff’s loss or harm. This is based upon whether the plaintiff has satisfied that burden and met the standard.
  • Most of the time a unanimous verdict is required, but in some cases a majority verdict of five out of six jurors may be accepted
  • Jurors do not need to provide reasons for their verdict and can also contribute to calculating damages

Question 15

Strengths of the role of the jury

Answer 15

• A random cross section of the community is used to determine a verdict, so the parties to a civil dispute should fill their case has been decided by their peers and according to a diverse range of views (impartiality)
• Both parties have the capacity to request a jury trial in civil dispute, regardless of personal characteristics (formal)
• The presence of juries increases the use of plain English instead of legal jargon and ensures the jury understands the court procedures and the evidence they are being asked to make a decision upon (informed basis)

Question 16

Weaknesses of the role of the jury

Answer 16

• Jurors do not need to provide reasons for their verdict, meaning there is no guarantee the law has been correctly applied based on the facts presented (open + impartial)
• A party may wish to have a jury trial but may be unable to bear the cost. This limits equality as those of a low socio economic status are less likely to utilise a civil jury trial (formal)
• Hung jurors and mistrials due to juror misconduct can require a retrial and further delay the achievement of justice, hindering efficient and timely access to justice (engagement)

Question 17

Similarities of the roles of the jury in civil and criminal

Answer 17

Jurors have a paramount role in remaining impartial and making a decision based on the evidence presented, regardless of whether they are taking part in a criminal or a civil case
- Both criminal and civil cases jurors are obliged to listen to instructions, directions and evidence carefully

Question 18

Differences of the roles of the jury in civil and criminal

Answer 18

• In a criminal case, it is the jury’s role to determine the guilt or innocence of the accused, based on whether the standard has been achieved (BARD) , whereas in civil it is to determine the liability of the defendant, based on whether the standard has been achieved (OTBOP)
• In criminal law, the jury’s sole role is to determine the guilt, whereas in civil they can determine the liability and potentially damages or remedies awarded