Before the trial
Starting a civil action, actually suing another person(s), can be confusing and stressful. One way to lessen the stress is to know what to expect. Here are the basic steps:
- Get a lawyer – As of June 1, 2017, a claim of up to $35,000 can be brought in Small Claims Court with no lawyer. Over $35,000, the claim goes to the Supreme Court of British Columbia and it’s prudent to seek help.
- Draft a notice of civil claim (NOCC) – A lawyer can sometimes resolve a matter before officially starting the lawsuit, but usually a notice of civil claim is typed and filed early on to preserve the right to sue. This document identifies the person bringing the lawsuit (the “plaintiff”) and the person(s) being sued (the “defendant”). In personal injury actions, the NOCC describes:
– the nature of the collision which caused the plaintiff’s injuries;
– the type of injuries sustained;
– the consequences of those injuries on the plaintiff; and
– the relief sought – i.e. damages, interest, and costs.
Once the notice of civil claim has been processed or “issued” by the Supreme Court, it is served personally on the defendant(s), who must file a response to civil claim.
The response to civil claim confirms the identity of the defendant(s), disputes or concedes liability, and invariably disputes the claim for damages.
- Compile and exchange documents – Next, lawyers for each side compile a list of all litigation-relevant documents they have and exchange them. This might include accident reports, medical reports and records and employment records.
- Examine for Discovery – This is the main tool for each side to know the other side’s case. It’s held in an office on an agreed-to date. In the discovery of the plaintiff, the lawyer for the defendant asks the plaintiff under oath what he/she knows about the accident and the plaintiff’s situation before and after. In the discovery of the defendant, the lawyer for the plaintiff asks the defendant about these things. The questions and answers are recorded, usually transcribed, and may be evidence at trial.
- Get a trial date – Approximately 90% of personal injury cases settle before trial. Those that don’t often have unusual facts or involve significant disputes on the evidence. In large urban areas, however, there can be a waiting list of up to two years to get a trial date, so it makes sense to get into line early even if the case may settle.
- Settlement – A person’s claims can settle any time up to, and even during, trial. Once an action is commenced, though, it’s most likely to settle between the examination for discovery and trial. This is when most of the facts are known but major trial costs (and risks) haven’t yet been incurred.
- Put in your case – A trial is divided into two general segments. In the first part, the plaintiff’s lawyer puts in the plaintiff’s case. The plaintiff and all the witnesses called by the plaintiff’s lawyer will testify and be cross-examined by the defendant’s lawyer.
- Tackle the defendant’s case – In the second half of the trial, the defendant’s lawyer puts in the defendant’s case, calling the defendant and any other witnesses. The plaintiff’s lawyer will cross-examine them.
Both plaintiff and defendant have the right to attend the whole trial, but the plaintiff may be advised not to. The trial can be tiring, listening to loved ones describe the effects of the accident can be painful, and those descriptions may be stilted with the plaintiff there. A family member might attend instead and report to the plaintiff on the key aspects of the trial.
- Get judgment – Where there are difficult issues and no jury, a judge “reserves judgment,” sending the parties home while the judge considers the evidence and writes a judgment months afterwards. With a jury, judgment follows immediately. Either way, the judgment will decide whether the defendant is responsible for the plaintiff’s losses and decide what the losses are, attaching a dollar figure to those losses.
After the trial
- Try to get costs – Normally, when a plaintiff sues and wins, the defendant(s) should pay certain costs (e.g. legal fees, court filing fees, medical reports) the plaintiff incurred in bringing the lawsuit. However, this can change if the defendant ha soffered to settle the plaintiff’s cliam for more than what the plaintiff ultimately recovered at trial. In that case, the plaintiff will likely have to pay the defendant’s costs from the date of the defendant’s offer to settle. Arguing for something outside the scales (e.g. to punish a defendant for outrageous conduct) is usually done at a separate hearing after the trial and witnesses are not usually called. Note that if the defendant wins, the plaintiff will have to pay fixed costs to the defendant.
- Pay the lawyer – Before the litigation began, the plaintiff will have agreed to pay the lawyer either on an hourly or a contingency basis. If the lawyer is paid on an hourly basis, he/she bills the client according to the hourly rate and number of hours, win or lose. If the lawyer is paid on contingency, he/she collects a percentage of any monies recovered through trial or settlement, but no fees if no recovery. In either case, the plaintiff must pay for all disbursements (filing fees, expert’s reports, etc.) which the lawyer incurred in prosecuting the claim.
- Appeal? – Either a plaintiff or defendant may appeal to the Court of Appeal. There, the court will read the transcripts of the evidence given at trial; new evidence is almost never considered. Also, judgments are rarely overturned unless the appeal court finds an error of law was made. Note that a trial judgement may be “stayed” (i.e. monies not paid out) until the appeal is heard.
Litigation is stressful, but less so when a person knows what they’re getting into and can work knowledgeably with their lawyer to get the best result.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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