U3 AOS 2a lesson 8 Flashcards
jury features
- A jury is not a guaranteed right for parties in civil disputes .
A jury is required to determine liability and award remedies based upon the evidence presented (except for defamation)
There are 6 jurors used in civil matters
A party must seek approval to have a jury used in civil matters and must be able to fund the cost of a jury - the cost of a jury for the first day in County court = $1,626 then $303.60 for subsequent days
role of jury: remain objective
- The jury should be independent and unbiased throughout the proceeding + when determining the verdict.
- Jurors who believe they cannot remain impartial must asked to be excused during jury empanelment
role of jury: listen to evidence, judges directions + submissions made by legal reps
- The jury must listen to all evidence presented at trial to ensure that the verdict reached is based on relevant evidence + facts.
- Jurors can take notes and keep track of information throughout the trial through listening to directions given by the judge + explanations of key concepts
role of jury: determine liablity
- The main role of the jury is to determine whether the defendant is responsible for the plaintiff’s loss/harm. This is based on whether the plaintiff has satisfied their burden and met the standard - on the balance of probabilities
- Most of the time, the jury will need to reach a unanimous verdict however in some cases a majority verdict of 5 out of 6 jurors may be accepted
- Jurors are not required to provide reasons for their verdict
- Jurors can also contribute to calculating damages other than in defamation trials
strength of role of jury: fairness
- A randomised cross-section of the community Is used to determine the verdict, so the parties to a civil dispute should feel their case has been decided by their peers and according to a diverse range of views, promoting fairness.
Juries cannot seek additional information about the case beyond the courtroom and are instructed to disregard any prior knowledge of the dispute. This promotes fairness as it encourages jurors to remain impartial
weakness of role of jury: fairness
Making decisions in legal cases is a complex task and when undertaken by people with no legal training, there is a greater risk of an unfair verdict.
Jurors are not required to provide the rationale for their verdict, meaning there is no guarantee the law has been correctly applied based on the facts presented
strength of role of jury: equality
*Both parties have the capacity to request a jury trial in a civil dispute regardless of personal characteristics, therefore upholding equality.
weakness of role of jury: equality
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 socioeconomic status are less likely to utilise a civil jury trial.
Some individuals are ineligible for or disqualified from jury service, and as a consequence, parties may not feel the jury is a true cross-section of the community. This may undermine equality to a trial oy one’s peers.
strength of role of jury: access
The presence of juries increases the use of plain English, instead of legal Jargon, and ensures the jury understands the courts procedures and the evidence they are being asked to make a decision upon. This allows both parties to understand the processes being used to determine their case, promoting access to justice.
weakness of role of jury: access
*Additional fees are required for jury trials, so it may not be financially viable for some parties to request them. This financial constraint makes trial by jury inaccessible for some parties
- Access to efficient dispute resolution may be delayed by the use of a jury as extra time is required to empanel a jury and throughout the dispute where the judge may need to spend more time explaining key legal concepts or evidence to jurors.
- Hung Juries and mistrials due to juror misconduct, can require a retrial and further delay the achievement of Justice. This hinders efficient and timely access. to justice
sim of role of jury crim and civ:
Juries 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.
In both criminal and civil cases, juries are obliged to listen to instructions, directions, and evidence carefully.
diff of role of jury crim and civ: SOP
In a criminal case, it is the jury’s role to determine the guilt or innocence of the accused. If it is determined that the accused is guilty, this must be beyond reasonable doubt. In a civil case, the jury determines the defendant’s liability. and this must be on the balance of probabilities.
diff of role of jury crim and civ: judges assistance
Unlike in criminal matters, a person’s trial may be adjourned for them to gain legal rep, the same right is not afforded to parties in civil matters. A judge, however, has the duty to assist self-represented litigations (a person in a civil dispute).
sim of role of jury crim and civ: imposing punishment
Whilst the imposition of a sanction for an accused who is found guilty is never the role of a jury in a criminal case, in some civil case, the jury may play a role in determining the amount of damages to be awarded.
role of solicitor
legal practitioners who primarily advises clients about
legal matters, prepares legal documents for trial, communicates with the other party’s legal representation, researches the relevant laws + engages in the services of a barrister and briefs them to represent the client
Should the matter proceed to trial, a barrister is generally used in conjunction with a solicitor.
role of barrister
a self-employed lawyer who regularly appears in court and is responsible for representing a party at trial through making legal arguments, questioning of witnesses, summarising the case for the judge/jury
Barristers may also be used to present their client’s case in out-of-court settlements such as mediation, conciliation or arbitration.
**need for legal rep: advice clients of their rights, provide objectivity and support
- Gaining legal advice from a lawyer will allow a party to better understand their rights + obligations to make an informed decision
- Lawyers can read through past cases to assist their clients determine the likelihood how of their matter may be resolved
- Unlike parties in a civil dispute who may be emotionally invested in the dispute’s outcome, especially if the civil dispute relates to sensitive matters such as discrimination or family issues, a lawyer will be able to look at the dispute through an impartial lens. This objectivity can allow lawyers to better perceive the strengths + weaknesses of their client’s and opposing party’s case.
**need for legal rep: present evidence + cross examine witness
- Presenting evidence + cross examination requires procedural standards to be abide by to ensure irrelevant questions are not being asked. Therefore, a barrister who is familiar with such rules will be able to ask relevant questions of witnesses and present compelling evidence to support their client
- The Family Law Act 1975 prevents the cross-examination of one another in family matters when violence has previously occurred. Therefore, VLA must appoint a lawyer to represent the party that is banned from cross-examination.
**need for legal rep: ensure docs are properly drafted and handled
- In civil disputes affidavits + subpoenas may be required to receive evidence relevant to the case. Those who are not familiar with court proceedings may struggle to ensure such documents are handled
- Once a dispute has finished, ensuring that a legally-binding agreement may be formed. A lawyer can ensure this agreement is binding on both parties and that the agreement is not unfair to their client.
legal assistance: VLA
- It may be more difficult for low socio-economic parties in a civil dispute to gain assistance from VLA.
*VLA may grant legal assistance to the plaintiff in a civil dispute if the amount of their claim is $5000 or more and,
a defendant may also receive assistance if all the following factors apply:
The claim is more than $5000
* The defendant’s sole home is at immediate risk in the action
*There is a strong prospect that the defendant can defend the action
legal assistance: CLCs
*AED Legal Centres in Melbourne assists people with disabilities who have employment and education related legal problems such as unfair dismissal
*Disability Discrimination Legal Service in Melbourne assists people with disability discrimination matters
- Easter Community Legal Centres provides free legal advice to people in Melbourne’s Eastern suburbs in civil matters relating to family law, divorce, discrimination, neighbourhood disputes are more
strength of legal rep : avoid delays
Legal practitioners can avoid delays when compared to self represented parties since they are efficient at researching case law, gathering documents and will have the resources of a paralegal to assist them as opposed to a self-represented litigant who may slow down the trial.
strength of legal rep : appeals success
A party in a civil dispute may have an improved chance of appeals if they have legal representatives to complete the documentation required for the appeal and present the necessary arguments.
strength of legal rep: no win fees
Some law firms use a no-win, no-fee arrangement which may encourage a plaintiff to seek justice as, where they lose the dispute, no financial burden is incurred.
weakness of legal rep : no legal rep
The processes involved are complex and difficult to
understand without the use of a lawyer, thus making it
difficult for self-represented parties.
weakness of legal rep: diff levels of understanding
Some parties may be more familiar with their disclosure
obligations than others; others may have less
understanding of the requirement to disclose relevant
documents, even those that are not helpful to their case.
weakness of legal rep: party control
‘party control’ mean that the parties need time to prepare
their case, and make decisions about how to run their
case, which can add to the delays. This can be stressful
and cost money.
