Textbook Notes (367,753)
Canada (161,369)
LAW 122 (617)
Chapter 2

Chapter 2 Notes Litigation and Alternative Dispute Resolution

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Law and Business
LAW 122
Ricardo Reyes

LAW 122 Chapter 2 – Litigation and Alternative Dispute Resolution Jan 22, 2014 THE LITIGATION PROCESS Litigation – System of resolving disputes in court Business people realize that litigation is often a poor way to settle disputes • Expensive • Unpredictable • Frequently fatal to business relationships Who can sue? • All adults, whether or not they are Canadian citizens • Some organizations (corporations) but not others Unincorporated organizations (e.g. teams, community groups, clubs, etc.) cannot sue or be sued as one. One must instead bring an action against individual members Class Actions • Allows a single person, or a small group of people, to sue on behalf of a larger group of claimants • Beneficial because: o It allows small individuals to take on large organizations o Cost effective way to sue for small but wide-spread claims (save society money) o Threat of class action may curtail big business behavior o Organization may worry about a single claim worth a lot, rather than many smaller claims Class Action Criteria • Cause of action, legitimate claim recognized by law • There must be common issues amongst the various members of the class • The plaintiff must qualify as a representative plaintiff who demonstrates a workable plan for fairly repsentin the interests of the class members • A representative plaintiff must also have a workable plan for notifying potential class members • Court must be convinced that a class action is the preferable procedure for dealing with the claims o Will consider whether a class action will become too complicated, and whether there are enough similarities between the class members • Assuming previous requirements are met, the action must be certified that represents the court’s decision to allow the various claims to be joined together and to proceed as a class action Legal Representation Assuming you want to sue or have been sued, you have 3 choices regarding legal representation: Page 1 of 9 LAW 122 Chapter 2 – Litigation and Alternative Dispute Resolution Jan 22, 2014 1. Self-Representation 2. Lawyer 3. Paralegals Self-Representation • Have the right to represent one self in court • Usually in simple matters • It may be expensive to hire a lawyer but far more expensive in the long run to lose a lawsuit because of the lack of experience Lawyers • Provides competent help and increase likelihood of success • Person must complete training and passed the bar successfully • Law Society: o Regulates the profession o Imposes codes of conduct and punishes members who act improperly o Provide assurance funds, compensation to people who have been hurt by dishonest lawyers • Lawyers must carry professional liability insurance • Sue for negligence if lawyer acts carelessly and you suffer a loss as a result Paralegals • A non-lawyer providing legal advice and services • Common in small claims courts and landlord and tenant tribunals • Regulated paralegals: o Require some training and examinations o Have Codes of Conduct o Can be punished for wrongdoing o Must carry liability insurance o Are limited to certain types of work Pleadings • Documents that are used to identify the issues and clarify the nature of a dispute o Drafted by party o Issued by court Page 2 of9 LAW 122 Chapter 2 – Litigation and Alternative Dispute Resolution Jan 22, 2014 o Served on opposing party • Parties: o Plaintiff or Claimant: person starting lawsuit o Defendant: person defending lawsuit • Most claims are subject to limitation periods (period of time within which an action must be started o Most claims must be started within 2 years from the day on which the plaintiff discovered, or should have discovered, the cause of action o Claims in contract within 6 years o Claims in tort within 2 years o Recovery of land within 20 years o Sue city for damages from poor road repair within 7 days o Late claim generally unenforceable Types of Pleadings • Statement of Claim o Used by plaintiff to start lawsuit o Outlines the dispute and states facts and desired remedies o Issued by the court and served on the other party Once party served with a statement of claim, it must react quickly. If the defendant does nothing within the relevant period (usually less than one month), the plaintiff goes to court alone and receives a default judgment where defendant loses by default. If defendant intends to deny liability, it should prepare a statement of defense • Statement of Defense o Defendant should file within time-limit o Sets out defendant’s version of facts and denies liability • Counterclaim o Claim the defendant makes against the plaintiff o Defendant may combine defense and counterclaim in a Statement of Defense and Counterclaim • Statement of Defense to Counterclaim o Prepared by plaintiff to defend against counterclaim • Demand for particulars o Requires the other side to provide additional information Page 3 of9 LAW 122 Chapter 2 – Litigation and Alternative Dispute Resolution Jan 22, 2014 Pre-Trial Activity • Parties first conduct examinations for discovery, a process in which the parties ask each other questions in order to obtain information about their case, conducted under oath o Reveals strengths and weaknesses of a claim o Discovery that one side might lose (which will add to the eventual cost), the party may encourage settlement, where the parties agree to resolve the dispute out of court • If there is no settlement, parties go for a pre-trial conference, where a meeting between the parties and a judge, and the judge may indicate which of them is likely to win if the case goes to trial. o If so, loser may be persuaded to settle • Mediation is the process in which a neutral person, called a mediator, helps the parties reach an agreement o Program introduced as Mandatory Mediation Program (MMP) in 1999 o Required to meet with mediatory within 90 days after the defense has been filed o Cannot go to trial until they have gone through mediation Trial • IF a lawsuit does go to trial, it will be decided by a judge • While a person who is accused of a crime generally has the option of appearing before a jury, civil litigation is almost always decided by a judge alone • If there is a jury, judge is responsible for finding the law, and the jury is responsible for finding the facts and applying the law • Court will hear first from plaintiff and then defendant • Evidence: consists of the information that is provided in support of the arguments o In order to get that evidence in front of the court, each side will call witnesses o Ordinary witnesses testify about facts that they know first-hand (person may describe the car accident) o Expert witnesses provide information and opinions based on the evidence (physician may suggest how defendant’s heart problem caused the accident) o Examination-in-chief – asking questions to your own witness and receiving answers o Cross-Examination – when other party examines your witness • There are strict – and often complicated – rules that determine which type of evidence are admissible o Hearsay evidence is information that a witness heard from another person, rather than directly from the source • Clai
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