Lawsuits

1. Starting a Lawsuit
2. Responding
3. Discovery
4. Interim Applications
5. Preparing for Trial
6. Trial
7. Completing the Claim

1.  Starting a Lawsuit

If one has not been able to negotiate a settlement in the earliest stages, it may be time to start a lawsuit. There may be more than one way to sue. One may start a lawsuit by Writ of Summons or by petition. The choice of method depends on the laws governing the particular problem. Each has different uses and benefits. Proceedings started by writ have more procedures available, discovery of documents, Examination for Discovery, discovery by interrogatories, and pre-trial conferences. Proceedings started by petition tend to be faster because they can be heard by affidavit or written evidence.

An action is a lawsuit started by Writ of Summons. This is the most common way of beginning a lawsuit. Parties to a lawsuit will hear this use of the word “action” a great deal. A “civil action” is a non-criminal lawsuit started by a writ.

A Writ of Summons is a form prepared by the lawyer for the Plaintiff, the party starting the lawsuit. The writ includes the pleadings where all parties are named, and the issues are defined. The writ may be accompanied by a statement of the claim being made including the material facts, relief sought and proposed location of trial. Once the writ and Statement of Claim have been filed at the Court Registry, they must be served on the other party before the action proceeds.

One starts a lawsuit by petition (if this is required or allowed) by the statute governing the specific problem and the Rules of Court. Petitions are most commonly used for estate or property litigation. Like writs, petitions include the names of the parties and define the issues. They are also served on the other party.

The Rules of Court set out what it means to be served.

2.  Responding

Once served with a petition, one becomes a Respondent and has 7 days to enter an appearance. Entering an appearance means letting the Court know one will be participating in the proceedings.

Once served with a writ, one becomes a Defendant and has 7 days to enter an appearance. The writ and Statement of Claim may not be served simultaneously. If so, the Defendant has 14 days following service of the Statement of Claim or the time limited for appearance, whichever is later, to enter a Statement of Defence. If the Statement of Defence is not filed in time, the Plaintiff can apply for judgment in default.

The Statement of Defence mirrors the Statement of Claim. Here, the Defendant responds to allegations in the Statement of Claim and includes pleadings. He or she admits to those allegations which are true and denies those which are in dispute.

A Defendant might also make a counterclaim against the Plaintiff. Essentially, this turns the Plaintiff into a Defendant also.

Upon receiving the Statement of Defence, the Plaintiff may give a reply but this is rarely necessary.

As mentioned above, pleadings state material facts. They should state only material facts – those facts which, if true, would in law give rise to the relief sought. Any part showing no reasonable claim or defence can be struck out.

3.  Discovery

Discovery is the process by which information is exchanged. This occurs in the form of Examinations for Discovery and Discovery of Documents.

In an Examination for Discovery, one party’s lawyer will question the other party in great detail. This is to gather information that might be used at trial or negotiations. It can be a tedious process as each set of facts must be meticulously dissected.

The parties examined must tell the truth and are generally required to produce documents which are relevant to the lawsuit. Examination for Discovery is an opportunity for us to unearth as much relevant information as possible. Conversely, it is an opportunity for the other party’s lawyer to discover information previously only held by us.

Discovery of documents involves each party keeping the other parties informed of all “relevant” documents in that party’s possession or control. A document is “relevant” if it is logically connected to and tends to prove or disprove a matter in issue at trial.
Discovery of documents is an ongoing process. Initially, lawyers for both parties will exchange a list of all relevant documents that have ever been in the possession or control of the parties. As other relevant documents come to light, those too must be added to the list and opposing counsel notified of their existence.

Understandably, discovery can be one of the more costly parts of litigating. The sheer volume of documents to be prepared and catalogued, the scheduling of and preparation for examinations, the tracking down of witnesses and preparation of the parties can require a great deal of time and care. A thorough discovery can mean success in the lawsuit. Or, it can bring to light facts which make settlement all the more appealing to the parties.

4. Interim Applications

After a lawsuit has begun but before trial, preliminary matters often arise that need to be decided by a Court. If so, we apply to Court requesting an order on the matter. For example, we might request an order that the other party show us a particular document that they would rather not share. Application procedures are also established by the Rules of Court.

Making an application is similar to starting a lawsuit. An Applicant will file with the Court Registry a petition or Notice of Motion in its correct form with accompanying affidavits in support of the request. The Applicant then serves these documents on the other party who becomes the Respondent. The Respondent files and delivers an appearance in the correct form to the Court Registry. The Respondent then delivers to the Applicant a response and corresponding affidavits. The Applicant then has an opportunity to reply.

Finally, there is a hearing where a judge or master decides whether to grant the relief sought. Once an order is made, the lawyer who applied for it will draft the order and request the other party’s lawyer to approve it before it is ultimately filed with the Court Registry.

An affidavit is a voluntary written declaration of facts. It is sworn under oath, so it can be used as evidence in support of an application, a reply or even in a trial.

Some applications are strictly procedural or are for consent orders and do not have to be brought before a judge or master. Instead, they are merely submitted to the Court Registry for approval.

5. Preparing for Trial

Preparing for trial is costly and time-consuming. It involves much time and energy of both client and lawyer, not to mention the assistance of a dedicated staff. At this stage, the parties will necessarily have to take some time off work to attend examinations for discovery, prepare with their lawyer for trial and even do some information gathering by them self to save time and money.  Many of the components mentioned above including reviewing the law, negotiating, making interim applications, gathering facts and discovering documents happen during this phase too. In addition, the lawyer prepares witnesses, evidence, oral arguments, written submissions, and books of exhibits and laws for trial.

6. Trial

If the parties have not managed to reach a settlement, the trial goes ahead. Even at this late stage, it is not too late to negotiate an agreement. Sometimes, there is a greater incentive at this time to bargain because the parties are aware of most of the relevant facts and law and may have gained a clearer understanding of their positions.

Using all of the materials already prepared, and some that may arise even during the trial process, we advocate for our client at the trial. Based on the facts and the law presented at trial, the judge will choose an outcome. This may take days or weeks. We may not receive the decision until well after the trial has ended.

7. Completing the Claim

We do all work needed to complete the lawsuit. We give our client money from a settlement or judgment after we have deducted our fees and expenses. However, it does not include taking new steps such as enforcing or appealing a judgment. Enforcing a judgment may involve starting new proceedings to force the other party to actually pay what he or she has been ordered by the Court to pay. Appealing a judgment involves asking a higher Court to change the judgment.

Civil litigation is an involved, intricate process. It requires quite a lot of energy, time and money. Fortunately there are many other less burdensome processes by which people can resolve conflict.

Knowing just a little about legal processes reduces the anxiety and fear so often felt by those mulling over whether or not to seek legal help. We at Pihl Law Corporation hope the tour you have received here gives you with some memorable snapshots of civil litigation processes. Really, civil litigation is not such an expedition into the wild. It is a lawyer-guided excursion through an intricate, organized structure of problem solving.

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