The adversarial nature of a civil trial AOS 2 Flashcards
Are there juries in civil cases, if so how many?
In the Magistrates’ Court there is no jury. A jury is optional in a civil case tried in the County Court or Supreme Court although mostly only used in defamation cases. There are six jurors in a civil jury in the County Court and the Supreme Court. Up to two extra jurors can be empanelled if the trial is expected to be lengthy.
Peremptory challenges and challenges for cause
The parties have some influence over the composition of the jury. They can do this by challenging some of the jurors before they are empanelled. The plaintiff and the defendant are entitled to three peremptory challenges each. Peremptory challenges are challenges without a reason. A peremptory challenge in a civil trial is made by striking the name or number of the potential juror from the list of persons to be selected to serve on the jury. There can be an unlimited number of challenges for cause; that is, challenges with a reason.
The role of a civil jury
The role of a civil jury is to consider the facts of the case and decide who is most likely in the wrong. Their decision is made on the balance of probabilities. If a unanimous decision cannot be reached, a majority decision of up to five out of six will be accepted. If present, a civil jury may also be required to decide on the appropriate remedy, for example on the amount of damages to be awarded. In defamation cases, only a judge can decide the amount of damages.
The adversarial nature of a civil trial
This system is based on the two parties to a case battling to win, each party acting as the adversary of the other. In a civil case, the plaintiff (the person with the complaint) wins the case if the defendant is found to be in the wrong.
There are five key features of the adversary system of trial:
Role of the parties Role of the judge Rules of evidence and procedure Need for legal representation Burden and standard of proof
The role of the parties
Each party has control of their own case and is able to choose what
evidence they may adduce (provide as proof) and which witnesses they may call, as long as they follow the rules of evidence and procedure and advice given by their legal representatives. The parties have some influence over the composition of a jury (if there is one) and have complete control over the way the case is put.
Role of the judge
There must be an independent umpire (the judge or the magistrate) to ensure that the case is conducted according to the rules of evidence and procedure, and that both sides are treated fairly. The judge is not able to take sides and cannot force the parties to present the case in any particular way. The judge does, however, have significant powers to manage a case, including the power to limit discovery and the power to limit the time for evidence in the trial.
Rules of evidence and procedure
Only relevant and admissible evidence is allowed to be heard by the court. Evidence is normally given orally by witnesses; each side is able to cross- examine the witnesses of the other side and in this way the truth should emerge. Both parties are required to comply with the rules of evidence and procedure. The trial will follow a procedure, such as when the parties are able to make submissions or examine witnesses.
Need for legal representation
For the adversary system to work effectively, each side is able to engage legal representation. This is to ensure that each party has an equal opportunity to be represented. However, the person with the more highly skilled legal representative may win the case; this could mean a person’s ability to win the case can depend on the skill of his or her legal representative. The more-skilled legal representatives are often the most costly to employ.
The burden and standard of proof
The burden of proof is on the plaintiff. He or she must prove the case to win. The standard by which the plaintiff must prove the case is on the balance of probabilities. This means that the judge (or the jury) must consider which story, or which party, is more right than the other.
Advantages of the adversary system
The impartiality and neutrality of the judge is one of the critical advantages.
The idea of the parties controlling their own case promotes the idea that an individual or group should be free to present their case as they wish.
While the use of legal representation may increase the costs of a party, it ensures that parties are able to rely on people with expertise and knowledge about the law and about the rules of evidence and procedure.
The rules of evidence and procedure allow for consistency and fairness.
The burden of proof ensures that whoever is bringing the case has to prove it. Therefore, it is not on the defendant to prove anything (unless he or she raises a defence or counterclaim).
