Ch 2: Litigation and Alternative Dispute Resolution
Litigation- system of resolving disputes in court.
The Litigation Process
WHO CAN SUE AND BE SUED?
Class Actions- allows a single person, or a small group of people, to sue on behalf of a larger croup of claimants
The Basics must be the same:
Common issues among various members of class with a few exception
Representative plaintiff must demonstrate a workable plan for fairly representing the interests of the class
Notification must have a workable plan to notify all potential class members (i.e. newspaper)
o Decisions are made for those who don’t express opting out cannot bring separate actions on their own.
Preferable procedure whether it is acceptable by court
o Whether class action will become too complicated, enough similarities between class members.
Certification actions must be certified
o Represent the court’s decisions to allow the various claims to be joined together and to proceed as a class
Self-representation small claims courts have been set up to encourage people to deal with some sorts of
disputes by themselves.
Lawyerspart of Law Society , who impose codes of conduct and punishes members who act improperly (fined,
suspended, or disbarred)
o Required to hold:
Professional Liability Insurance- allows a client to receive compensation from the lawyer’s
insurance company if the lawyer has acted carelessly
o Assurance fund- provides compensation to people who are hurt by dishonest lawyers.
Paralegal- a person who is not a lawyer, but who provides legal advice and services
o Common use in small claim courts and landlord and tenant tribunals administrative tribunals and some
criminal cases with a max jailed time of 6 months o Cannot draft wills or handle real estate transactions or estates
o Cannot work on a contingency fee basis
PLEADINGS- the documents that are used to identify the issues and clarify the nature of a dispute
Some are prepared by
o Plaintiff- a person who is making the complaint
o Or defendant- a person about whom the complaint is being made
Limitation period- a period of time within which an action must be started.
Statement of Claim- a document in which the plaintiff outlines the nature of the complaint
Defendant must act quickly within a month or else the plaintiff will win by default
Statement of defence- a document in which the defendant sets out its version of the facts and indicates how it
intended to deny the claim
Counterclaim- a claim that the defendant makes against the plaintiff
Reply- a document in which a party responds to a statement of defence
Demand for particulars- requires the other side to provide additional information
Conduct before going to court:
o Examination for discovery- a process in which the parties ask each other questions in order to obtain
information about their case
Conducted under oath and the answers can be used as evidence
o Discoveries encourage settlements:
Settlement- occurs when the parties agree to resolve their dispute out of court
More than 95% of claims are settled outside of court
Pre-trial conference- a meeting that occurs between the parties and a judge.
o The judge could indicate who might loose, encouraging settlements could be called upon by anyone
Mediation- a process in which a neutral person- called a mediator- helps the parties reach an agreement.
o Must occur within 90 days after the defence has been filed.
Crime appear before a jury
Civil litigation decided by a judge alone
Court will hear first from the plaintiff and then defendant
Evidence- consists of the information that is provided in support of an argument
Ordinary witness testify about facts that they know first-hand
Expert witnesses provide info and opinions based on evidence
Examination-in-chief process when a party calls upon a witness to ask questions and to receive answer
Cross-examine after examination-in-chief
Adversarial system present own version of events and attack one another. The truth lies in the middle
Evidence must be admissible want direct evidence not hearsay evidence
Hearsay Evidence- information that a witness heard from another person, rather than directly from the source.
Must prove claim on the balance of probabilities probably true
o Tip more in favour for plaintiff defendant is liable
o For defendant not liable o If the case has to be proved beyond a reasonable doubt then:
Guilty or not guilty
Judgement Debtor- a defendant who has been found liable and ordered to pay money to plaintiff
To enforce this garnishee a judgement debtor’s income, seize and sell their assets help from public authorities
Appeal court (appellate court)- decides whether a mistake was made in the court below.
Appellant- the party who attacks the decision of the lower court
Respondent- the party who defends the decision of the lower court
Appeal should start within 30 days after the trial court gave its decision
Trial vs. Appeal
o Trials have 1 judge; appeal is heard by 3 judges or more odd number for voting (majority rules)
o Appeal court does not listen to witnesses or receive evidence hear and read arguments
o Appeal court deals with law not facts only overturn a fact if trial judge made a palpable and overriding
Appeal court could affirms, reverse lower court decision, vary some parts, or call for a re-trial if not enough info.