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Starting a Lawsuit You usually begin a lawsuit by filing a "writ of summons" and a "statement of claim" in the court registry. These set out facts which you allege happened, and ask for a court to grant you a judgment based on those facts. The person initiating the lawsuit is called the "plaintiff", and the person being sued is called the "defendant". The writ of summons and the statement of claim must be given to the defendant personally. Sometimes its difficult to do this, especially if the defendant is avoiding you. In that case, your lawyer can apply to court to have the documents served another way; perhaps given to a relative, or posted on the defendant's door. If the defendant wants to defend the lawsuit, he or she must respond within 7 days by notifying the court; otherwise, the court may grant the plaintiff judgement by default. Later, the defendant must provide a "statement of defence", which sets out his or her version of the facts, and why he or she is not liable to the plaintiff. Before the trial, there are at least two important steps: Discoveries and the Pre-trial Conference. Top of Page Discoveries Discovery is a process in which each side is given an opportunity to see what evidence the other side will present at trial. This will include "examinations for discovery", and "discovery of documents". In an examinations for discovery, you or your lawyer can examine the other party, and vice versa. The witnesses are under oath, and are liable for perjury if they don't tell the truth. This is like an interrogation, and your lawyer will try to get the other party's witnesses to admit facts which help your case, and will try to catch inconsistencies in their statements that hurt your case. "Discovery of documents", is a process whereby each side must provide a list of all relevant documents to the other side. You need to disclose any relevant documents, favourable or unfavourable. Remember the Microsoft trial, and the incriminating emails? Microsoft had to disclose them. Many disputes are settled at this or shortly after the Discovery stage. Once each party knows what they are up against, there is a basis for more informed settlement negotiations. Top of Page Pre-trial Conference A pre-trial conference is a meeting between the parties, their lawyers, and a Judge. The Judge will help the parties explore any settlement opportunities. If no settlement can be reached, the matter will continue to trial. Top of Page Trial It can take a year or longer from the time a lawsuit is started to get to trial. Two things must be determined at trial: what the facts were, and based on the facts, what the appropriate legal remedy is. Most of the drama in TV court cases is about determining the facts. Facts In court the plaintiff's lawyer begins with an opening general statement in review of the issues. Then, each party's lawyers will present evidence and call witnesses in support of their case. Witnesses may be cross examined by the opposing lawyer, who will try to discredit the witness's version of events. Cross examination is one of the most important skills of a lawyer, because winning often depends on casting doubt on the other side's witness' version of events. Remember the famous climax in "A Few Good Men"? Tom Cruise played a brash young lawyer, cross examining Jack Nicholson, a tough general, finally goading Nicholson into shouting that he committed the crime. Judges act like an umpire in a baseball game. They don't call witnesses or evidence, although they can ask whatever questions they want. Judges will decide a case only on the evidence presented in court for that case, and not on what is in the newspaper, or "common knowledge". Law After each side has presented evidence to prove their version of the facts, each lawyer will present legal research and arguments to show that based upon the law, their client is entitled to a favourable court order. Top of Page Judgement The Judge or Jury must first decide what the relevant facts were, based upon a "balance of probabilities". Think of the plaintiff and defendant placing evidence on two scales. One will probably weigh more heavily than the other, and so the judge will declare that that is what happened. The judge may decide some relevant facts in favour of the plaintiff, and other relevant facts in favour of the defendant. Secondly, based on the facts determined, the judge must decide what the legal rights of the parties are. Sometimes the law is fairly straightforward, and other times, the law is gray. In the latter case, lawyers will make submissions as to what they think the law is, and the judge will have to decide what law is applicable to the case. And thirdly, the judge must decide the appropriate legal remedy to order. A judge can order one party to pay another monies; or, the judge may make an order for an "injunction". An injunction is a court order compelling someone to either do something, or refrain from doing something. |
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Legal disclaimer: The information provided on Lawyers-BC.Com is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered. Your access to and use of this Web site is subject to additional terms and conditions. Last updated: December 10, 1999 © copyright 1999 Lawyers-BC.Com Services Ltd. |
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