T3 Intro to Civil Evidence

Question 1

Main types of evidence?

Answer 1

Main types:

• Real (a ‘thing’)
• Documentary
• Oral (testimony)

& - Other forms of classification

Question 2

When a party appeals to a higher court, what are they known as?

Answer 2

Appellant

Note:
Party denying the appeal is called the respondent

Question 3

2 types of real evidence?

Answer 3

‘thing’ - e.g. physical object like car bumper

‘spoken to’ - e.g. expert speaking on blood sample, finger print

Question 4

Simple phrase/rule for which party bears the burden of proof?

Answer 4

He who asserts must prove

When party relies upon a fact that is essential to their case

Note:

• Once proved, the party has discharged their burden
• The defendant who asserts positive defence (not denial) must prove

Question 5

What does plaintiff mean?

Answer 5

Person who brings a case against another

Question 6

An example of the presumption of - res ipsa loquitur (‘the thing speaks for itself’)?

Answer 6

Claimant doesn’t have burden of proof in negligence cases

e.g. for an work injury caused by an explosion at a steel plant.

Note:
Claimant does not have to prove why explosion happened. It just shouldn’t normally happen

Question 7

What is standard of proof?

Answer 7

Standard to which essential facts must be proved/established

established on the ‘balance of probabilities’ (UK civil cases)

Note:

• How or to what extent the bearer must prove, in order to discharge his burden of proof
• UK criminal cases established ‘beyond reasonable doubt’

Question 8

Does every fact a party relies upon in his case, need to be proven?

Answer 8

No

Note:

• For time and cost efficiency
• Doctrine of Judicial Notice (UK)/ Judicial Knowledge (Scotland) empowers a court to declare that certain facts to exist without the need of evidence.

Question 9

3 main types of Judicial Notice (UK) / Judicial Knowledge (Scotland)?

Answer 9

• Notorious facts
• Personal knowledge
• Judicial Notice after enquiry

Note:

• Notorious facts - well known, e.g. night follows day, pushbike has no engine - pointless adducing evidence
• Judicial Notice after enquiry - verified by the court after checking with another source

Question 10

A witness can refuse to answer a question, and a party can refuse to provide docs if privileged information. What are 4x main types of privilege in litigation?

Answer 10

• solicitor-client comms (legal privilege)
• solicitor and not-the-client comms (e.g. with third-party pending litigation)
• in aid of settlement comms (without prejudice)
• against self-incrimination - for criminal prosecution only

Question 11

What does post litem motam mean?

for Scottish court

Answer 11

Communication made after it is apparent there will be litigation

Question 12

“without prejudice” letters are not fully protected, the courts will decide what parts are privileged, or not.

What is the intent of the courts for maintaining privilege in docs?

Answer 12

Promote settlement negotiations (oral and written)

Note:
“without prejudice” is good practice, but so common it is considered meaningless

Question 13

A party in possession of privilege can waive privilege for their benefit. e.g. use part of privileged document for the case.

If party wants to retain privilege on rest of the doc, the test is whether the document is…?

Answer 13

‘Severable’

Note:
e.g. document between solicitor-client communications would be privileged. If party uses part of this document, they risk waiving privilege on full document, that may work against them.

Question 14

Similar fact evidence is where, in the case of AvB, A may wish to use evidence of same issue, involving BvC

e.g. A accuses B of piracy. A uses example of B pirating C’s music copyright

(no answer required)

Answer 14

-

Question 15

When giving ‘weight’ to witness evidence, what two factors will they consider?

Answer 15

Credibility - truthfulness

Reliability - how well placed they are to give accurate evidence

Question 16

What is hearsay evidence?

Answer 16

Evidence of what someone else has said or written

not direct from the evidence-giver

Question 17

Precognition is an account taken from a witness and put into words of the statement-taker.

If account is in words of a witness, it is a statement.

Why is the distinction between precognition and statement crucial, in Scotland?

Answer 17

Precognition is inadmissible

Statement is admissible

Note:

• Precognition is filtered through the mind of another
• Unlike verbatim (word for word)

Question 18

Corroborated evidence is evidence from…?

Answer 18

2+ sources

Question 19

Rules on oral evidence (witness statements and expert evidence) are governed extensively by which statutes (e.g. rules/ acts)?

Answer 19

Civil procedure rules 1998

Civil evidence act 1972 & 1995
Civil evidence (Scotland) act 1988

Question 20

Most people are competent witnesses. In England, the general rule is that witnesses who are too young or mentally ill are not competent witnesses, and their evidence generally will be excluded.

Of competent witnesses, the test for competence requires the witness to be able to…?

Answer 20

speak/communicate coherently

speak the truth - understanding and obligation to

Note:
The Vulnerable Witnesses (Scotland) Act 2004 appears to abolish the competence test

Question 21

First stage of examination of a witness, in court. And the 2 further optional stages?

Answer 21

1. Examination in chief - questions by eliciting party
2. Cross-examination - by opposition
   [optional and common]
3. Re-examination - to clarify/ repair damage by cross-examination, same issues only not new issues
   [optional but less common]

Question 22

During examination of a witness, when is it permitted (and common) to use leading questions?

Answer 22

In cross-examination by opposition

Note:

• Not by eliciting party in examination in chief and re-examination
• For uncontested matters, it is acceptable to lead a witness, with permission of opponent

Question 23

Usually, only expert or skilled witnesses may give opinion evidence. Other witnesses must only speak to the facts. True or false?

Answer 23

True

Question 24

An experts duty is to help the court or be loyal to the party paying their fees?

Answer 24

Help the court

Question 25

Edge & Mills note that rules of evidence are based on four key concepts?

(to determine if evidence is valuable)

Answer 25

• Relevance (capable of proving/disproving a fact?)
• Weight (credibility & reliability)
• Probative value (= relevance + weight)
• (risk of inappropriate use) Prejudicial effect

Note:

• RGU add - admissibility
• Not the only filters to establish if evidence is valuable

Question 26

How does a party discharg evidential burden borne by him?

[2012 Modern Law of Evidence]

Answer 26

By adducing sufficient evidence

Question 27

Presumptions - sometimes courts use the device of presumptions to assist it in reaching a conclusion on whether the burden of proof has been discharged.
A presumption allows the court to infer (assume, presume) that a situation exists unless and until the contrary is proven. Many of the presumptions applicable in civil cases are relatively obscure, and not truly relevant to you in your professional lives

(no question)

Answer 27

-

Question 28

The Best Evidence Rule requires that the..?

Answer 28

best available evidence should always be provided

Note:
If court takes view that best evidence is not produced, secondary evidence of a fact may be disallowed as inadmissible. Sometimes distinction is expressed as between primary evidence (the best evidence) and secondary evidence

Question 29

When a party wishes to prove the content of a document, he must produce the original document. Will a copy or oral evidence, as to its terms normally be sufficient?

Answer 29

No

Note:
Except when original has been lost, as long as it is established that there has been a reasonable search conducted for it, secondary evidence may be produced

Question 30

Communication must be directly related to the giving of advice. If not, privilege does not attach

(no question)

Answer 30

-

Question 31

Motive for Seeking Disclosure - where the nature of the solicitor-client relationship is the very issue being probed by the court, privilege will not apply

(no question)

Answer 31

-

Question 32

Communications in Furtherance of a Crime - Where client is using solicitor-client communications privilege in a case, where he is alleged to have been involved in a criminal act directly involving solicitor, privilege will not apply

(no question)

Answer 32

-

Question 33

Describe what is the Power to Call Statement-Maker?

Answer 33

When party wishes to call a witness to give hearsay evidence

the opponent may wish to call the statement maker himself

Question 34

If a witness is competent, usually he/she can be forced to give evidence, providing there is no legal privilege - true or false?

Answer 34

True

Question 35

What is an affidavit?

Answer 35

A form of sworn written statement

Question 36

Evidence can be either direct or circumstantial. What is the difference between direct and circumstantial evidence?

Answer 36

Direct - establishes a fact e.g. eyewitness statements and confessions.

Circumstantial - requires judge and/or jury to make an indirect judgment, or inference, about what happened

Question 37

There are difference kinds of burdens that are variously called, for example, the evidential burden, the legal burden and tactical burden - true of false?

Answer 37

True