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Guide for in-person litigant in a civil trial
This article was written by Michael Dew, a Vancouver lawyer who practices civil litigation. Click here for contact information and further details about Michael’s practice. This article provides only information, not legal advice. If you require legal advice you should consult a lawyer.
Mon, 2007-08-27 17:47 — Michael Dew
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Introduction
The following is a guide for in-person litigants (also called lay litigants, or self represented litigants). It provides basic information about how civil trials proceed, and brief references to the key rules of evidence. Although a number of references are made to the courts in British Columbia, the general principles are applicable to civil trials in all Canadian courts.
Court schedule
Check with the registry of the court to determine the exact hours court sits for each day. To give the judges time to work on writing judgements, courts sit for relatively few hours each day. For example, the British Columbia Supreme Courts normally sits from 10:00 a.m. until 12:30 p.m. and from 2:00 p.m. until 4:00 p.m, with short breaks, 10 to 15 minutes long, about midway through the morning and afternoon sessions i.e. 11:00 a.m. and 3:00 p.m. However, the court may go past 4 o'clock if, for example, it is near the end of a witness's testimony. Court may also sit extra time on certain days in order to finish a trial on schedule.
If you are examining a witness or making submissions and notice that it is approaching time for the break, you may pause at a suitable juncture and suggest that it may be a good time to take the break.
Form of address
How to address the court depends on the court that you are in. For example, provincial court (small claims) judges are addressed as “Your Honour”, Masters of the British Columbia Supreme Court are addressed as “Your Honour”, and should be referred to as “Master X”.
Judges of the British Columbia Supreme Court are addressed as “My Lord” / “Your Lordship” or “My lady” / “Your Ladyship” regardless of whether they are sitting in chambers or in trial. Judges of the British Columbia Supreme Court are referred to as “The Honourable Mr. Justice X” or “The Honourable Madam Justice Y”.
Judges of the British Columbia Court of Appeal are addressed as “My Lord” / “Your Lordship” or “My lady” / “Your Ladyship”.
In a civil case, the court clerk should be referred to as “Madam Registrar” / “Mr Registrar”. In a criminal case the court clerk is referred to as “Madam Clerk” / “Mr. Clerk”.
Refer to the sheriffs as “Mr. Sheriff” / “Ms. Sheriff”.
It is polite to stand when the Judge enters or leaves the courtroom, and to stand whenever you are addressing the court. If opposing counsel stands to object to a question or otherwise address the court, it is appropriate to sit down until he or she is finished speaking.
If you enter or leave the court while it is in session, it is polite to bow as you enter or exit.
Opening statements and trial process
The trial begins with an opening statement by the plaintiff. In that opening statement the plaintiff will give a general overview of the nature of the plaintiff’s claim. The plaintiff will also outline who the witnesses will be and what those witnesses are expected to say. The opening statement is not evidence and does not amount to anything other than a road map to assist the court in understanding what the case is about. The only thing that counts in the trial will be what the witnesses say and what the admissible documents show about the relevant elements of the case. Therefore, opening statements should be short, briefly identifying the evidence that is expected, without describing it in detail. The plaintiff’s opening statement should briefly identify the law that the plaintiff expects to rely on to establish its claim, with reference to the statement of claim. However, detailed explanation of the law should be left for the argument stage of the proceedings which occurs near the end of the trial.
After the plaintiff’s opening statement is complete, the plaintiff will put its case before the court by way of witnesses and documents. The plaintiff’s case is complete when all its witnesses have been called and all of the documents on which the plaintiff intends to rely have been submitted.
Once the plaintiff’s case is complete, the defendant will have an opportunity to make an opening statement of its own. The defendant's opening should describe the nature of the defence that it intends to advance and the counterclaim, if any, that it intends to make.
During its opening, the defendant will describe who the defence witnesses will be and what those witnesses are expected to say. Again, the defendant should provide only a brief outline of the evidence it expects to lead, without describing it in detail. Lay litigant defendant’s should bear in mind that judges are experienced and knowledgeable in the law, and, having heard the plaintiffs case will have some idea of what the case is about.
How Witnesses testify
When witnesses take the stand they will be either swear or affirm to tell the truth. Swearing to tell the truth involves placing one’s hand on the bible and is the option chosen by people who believe that they have an obligation to God to tell the truth. People who do not believe that the duty to tell the truth has a religious aspect, can affirm to tell the truth. Both affirming and swearing to tell the truth are equally valid, and attract the same duties and consequences for breach of that duty i.e. liability to prosecution for perjury.
Examination-in-chief is the first set of questions a witness is asked. Examination-in-chief is done by the party calling the witness. These questions must elicit information from the witness on issues relevant in the trial. Leading questions must not be asked during examination-in-chief. Leading questions are those that, by the way they are asked, suggest an answer. For example, if a witness in an assault trial was asked: “You went to the store that night, didn’t you?” That's a leading question because it suggests the answer i.e. it suggests that the witness went to the store that night. A non-leading way of asking that question is, “Where did you go that night?” And the witness is then free to answer, “To the store”, or “To the movies”. In fact, even the question “Where did you go that night?” is a leading because it suggests that the witness went somewhere that night. A totally neutral way to ask the question would be “Where, if anywhere, did you go that night?” However, few lawyers would object to the question “Where did you go that night?” if the general tenor of the direct examination was non-leading. Generally lawyers will only object if a question is particularly leading, or if a serious of partially leading questions are asked during direct examination.
Although the general rule is that during examination-in-chief the witness must not be asked leading questions, some latitude is given on non-contentious matters, such as a person's name, age, birth place, occupation. Generally speaking, when you introduce the witness to the court you may ask those questions in a leading manner. For example, your name is Mrs. X, you are 32 years old, you live in Prince George and have lived there for X number of years, you're the mother of the complainant in this case, and you're here today because you understand that a complaint has been made about the accused; correct? Those are all leading questions, but all of it is perfectly proper because the information led is of a non-contentious nature.
Witnesses called by the lay litigant will be examined by the lay litigant, but of course there will be no-one to examine the lay litigant when they are on the stand i.e. they don’t have counsel to ask them questions. Therefore, the lay litigant should take the stand and describe, in a narrative form, the facts within their knowledge that are relevant to the matters in issue. It is important to realize that only the things said by the lay litigant when on the stand and under oath will be evidence; all other things said by the lay litigant during the trial i.e. during the opening statement and during closing argument, will not count as evidence. Just as counsel cannot give evidence at trial, the lay litigant cannot give evidence except when on the stand and under oath. Therefore, all important facts known to the lay litigant must be mentioned, even if it requires repetition, while on the stand and under oath.
After examination in chief is complete it is open to the opposing party to cross-examine the witness. Cross examination is an exercise of obtaining information from the witness that may weaken that party's case, or reveal that that witness is not a credible witness, or provide information that may be helpful to the cross-examiner’s case. Cross-examination must be done in the way of questions. The cross-examiner must not argue with the witness, but put propositions to the witness for the witness to either agree or disagree with. Furthermore, during both examination and cross-examination, one cannot present argument to the court related to the witness’s testimony. In other words, the examiner cannot interrupt the examination and say to the court: “You see, this is what I was telling you about in my opening statement”. All parties will have a chance to make arguments once all the evidence has been heard. During closing arguments the parties can draw the court’s attention to relevant witness testimony.
After cross-examination is complete the party presenting the witness will have an opportunity to do what's called re-examination. Re-examination is a very constrained right to ask questions of the witness to deal with issues that came out for the first time during cross-examination. It is not a chance to re-do the original testimony, or ask questions which you forgot to ask during direct examination. In re-examination it's quite common for the court to intervene and say “Wait a minute, that isn't proper re-exam, it's something you raised, or ought to have raised, in the first place”.
Confrontation
Both parties to the litigation have an obligation to challenge witnesses. If you hear the opposition’s witness give a version of events which you believe to be either inaccurate or misleading and you wish to challenge that, or you expect your own witnesses or your own documents will challenge that, you have an obligation to make that challenge while the witness is on the stand such that they have an opportunity to respond.
It is not fair to not challenge a witness with a contrary point of view and then layout that contrary view after the witness is off the stand. In that case, the witness will not have had an opportunity to respond to the challenge, to explain it, or to simply capitulate. It's entirely possible that the witness would agree that what they initially said was wrong. But if you don't confront the witness with the contrary point of view, or with evidence that you expect to lead that will challenge the witness, then you can expect to have a difficult time convincing the court that any weight should be given to the contrary evidence that you provide.
Evidence and facts
It is important to understand the difference between evidence and facts. Evidence is testimony heard in court, and any item marked as an exhibit during the course of the trial is also evidence. Facts are the things that the Judge, or the Jury, choose to believe from the evidence. In other words, the facts are the version of evidence that is accepted as true by the Judge or Jury. Something does not become a fact simply because a person gives evidence about it in court, or it is written in a document entered in an exhibit. The evidence has to be credible before the trier of fact (the Judge or Jury) can conclude whether it is a fact.
Objections
While the opposing party is questioning a witness, if you hear some part of their testimony, or a question put to them, that you believe to be objectionable, you should stand up and say “I object”.
A common objection is that the testimony is hearsay, in the sense that it is evidence that the witness has gained from some third party (i.e. not a party to the litigation) who could, or perhaps should, be called to give the evidence in person. However, an out of court statement is not hearsay if it is not entered for the truth of the statement, but simply for the fact that it was said, which may be relevant to a party’s state of mind. Also, out of court statements by parties to the litigation are not hearsay because they are considered admissions. Hearsay is a tricky area of law and it may be advisable to review an evidence textbook before trial, especially if it involves a “he said, she said” type situation.
Another common objection is that the evidence being led is not relevant to any of the issues in the trial.
The following list of objections was taken from p. 316 of Mauet, Casswell, & MacDonald, Fundamentals of trial techniques (New York: Aspen Law & Business, 1995):
Objections to questions:
o Irrelevant
o Violates best evidence rule
o Privileged
o Calls for conclusion (it is the role of the court, not the witness, to draw conclusions)
o Opinion (subject to limited exceptions [estimates of age, anger etc.] only experts can give opinions)
o Hearsay
o Leading (not permitted on direct examination, but is acceptable on cross examination)
o Repetitive (asked and answered)
o Improper re-examination or rebuttal (e.g. covering material which did not arise for the first time during cross examination)
o Assumes facts not in evidence
o Confusing / misleading / ambiguous / vague / unintelligible
o Speculation (the question calls for information that the witness could not possibly know)
o Compound question (i.e. two questions in one)
o Improper characterization
o Misstates evidence, misquotes the witness
o Improper impeachment
Objections to answers:
o Irrelevant
o Immaterial
o Privileged
o Conclusion
o Opinion
o Hearsay
o Narrative
o Improper characterization
o Parol evidence rule (applies in contract cases only)
o Unresponsive
To exhibits
o Irrelevant
o No foundation
o No authentication
o Hearsay
o Prejudicial effect outweighs probative value
o Inadmissible (mentions insurance, prior convictions etc)
Prior statements
You may wish to ask a witness about a statement they made before the trial started. That might be a statement the witness gave at an examination for discovery or a statement they gave to some other person. Prior statements made by witnesses are not normally admissible because they are hearsay. However, if a prior statement is inconsistent with the witness’ testimony given in the courtroom, that statement may be admissible for the purpose of testing the witness’ credibility.
Even if prior statements are admitted, they can only be used to assess the witness’ credibility. The prior statement cannot be used for the truth of what was said or written on the previous occasion. But, again, this does not apply to parties to the litigation, their statements are admissions and are admissible for the truth of contents of the statement.
Adverse inferences
If a party decides to not call any witnesses, or decides to not call a witness who is clearly under their control and whose evidence would probably be relevant to the case, they should expect their opponent to ask the court to draw an adverse inference from that decision to not call the witness or witnesses.
You should carefully consider who you decide to call as a witness. If you have somebody under your control who has, or would be perceived to have, relevant information, if you don't call that witness the court may draw an adverse inference from that failure. The adverse inference would be that the witness, if called, would give evidence that would not be helpful to your case.
Credibility
The following should be considered when making submissions on witness credibility in your closing argument (and when deciding whether to call a witness):
1. Did the witness appear to have a good memory, or was the witness's memory only good when it served his interest to remember something?
2. How did the witness appear when giving evidence? Was s/he forthright and responsive? Or was s/he evasive or hesitant or argumentative?
3. Was the witness’s testimony reasonable and consistent, or did the witness contradict himself or herself or make statements that did not seem reasonable in all of the circumstances?
4. Was the witness's testimony consistent with the testimony of other witnesses, including witnesses who testified after that witness?
5. Was there something unusual or memorable about an event such that you would expect the witness to remember the details? Or was it relatively unimportant so that the witness might have been easily been mistaken about some of the details?
6. How much time passed after the event, keeping in mind that memories tend to weaken with the passage of time?
7. Did the age of the Witness mean that the witness is more or less likely to remember things correctly?
8. Did the witness have a reason to be untruthful or was there a reason that s/he had a mistaken recollection?
9. Was there some reason, such as the use of drugs or alcohol, why the witness's memory may be impaired?
When it comes time for you to summarize the evidence and your case in argument, you may refer to these factors and any others you consider relevant. You may argue for or against the credibility of any witness. Although you should address the important points relating to credibility, bear in mind the judges are experts in assessing credibility and you generally need not go into minute detail.
Argument
At the end of the trial, each party has an opportunity to make a closing statement or argument. The plaintiff goes first, the defendant goes last, and then the plaintiff has an opportunity to make a brief reply. The reply is meant to deal with issues that arise from the defendant's closing argument which were not covered in the plaintiff’s argument.
Argument usually comprises four stages:
1. a summary of the evidence that the party making the argument considers to be important;
2. a description of the weak elements of the opposing party's case. The weak elements may be lack of credibility, a failure of a witness to testify on an important point;
3. a description of what the law is and how that law applies to the facts that you say are proven in the case; and
4. A conclusion which describes the outcome you desire.
The plaintiff will argue that the outcome should be judgment in its favour for a sum of money. The defendant will argue that the plaintiff ought not to have judgment, but that the plaintiff’s claim should be dismissed, and that the counterclaim, if any, should be allowed.
Costs
In provincial court (small claims), the unsuccessful party is generally not required to pay the costs (lawyer fees etc.) of the successful party.
At the superior court level, the unsuccessful party is generally required to pay part of the litigation costs of the successful party. Except in rare cases, the costs that are ordered payable are generally in the order of 30% of the actual costs incurred by the successful party. However, regardless of the actual amount, the important point is that in most cases the unsuccessful party is required to bear some part of the successful parties’ litigation costs. In extreme cases, conducting one’s case in an unprofessional manner may attract additional cost consequences.
Conclusion
Lay litigants should keep in mind that although the Judge has a duty to ensure that the case is fairly tried, that duty will not displace the Judge’s duty to impartially decide the case in accord with the law and on the facts established by evidence. Therefore, while the Judge may occasionally, as circumstances require, advise the lay litigant with respect to the rules of trial procedure, the Judge cannot, and will not, act as any litigant’s lawyer or legal advisor. Each litigant, whether represented or not, is ultimately responsible for the conduct of their own case and they should behave accordingly.
