Milton Verskin

 

barrister and solicitor

practicing in Toronto, Ontario

5.1  What is Involved in Fighting a Court Case

 

           A court case may be fought for the plaintiff, who claims money, or for a defendant, who refuses to pay money.  Let me explain what is involved in a court case, from beginning to end. For the sake of simplicity, I shall do so describing how I would represent you if you were the plaintiff.

 

           When reading this note, it is important to understand that very few cases go all the way to court.  Most are settled at one or other of the procedures which I describe.

 

           To begin with, you give me as much detail as possible about your case.  You show me your relevant documents and I make detailed notes about your case.  I then let you know how strong your case is, what your prospects of success are, and I give you a rough idea of what it is likely to cost. My estimate of costs is based on what you tell me and does not take into account the fact that surprises may come up which can seriously change the estimate.  For example, the defendant may raise defences which you did not anticipate, or you may later discovery facts which you had not thought of when speaking to me.

 

           I then outline your case in a letter which I send to the defendant.  In this letter I demand that he make payment by a particular date and threaten that you will commence a court action against him if he fails to pay.

 

           If he fails to pay, I send the defendant a “Statement of Claim”.  That is a document which has the court stamp on it.  It tells him that he must give his answer within 20 days.  He, or his lawyer, must do that in a document called a “Statement of Defence”.  If he does not respond, you get a judgement against him.

 

           In his “Statement of Defence” he must explain why he says that he does not owe the money.  He must explain why he thinks that what I say in your “Statement of Claim” is wrong.  He may also bring a counterclaim against you.

 

           After that, you must collect all of your documents  -  all your bills, cheques, etc. – and we make copies and you swear in an affidavit that these are all the documents about the matter which you have.  This is called your “Affidavit of Documents” and I will give his lawyer a copy.

 

           The defendant must also collect his documents and make his own “Affidavit of Documents” and his lawyer will give me a copy.

 

           After that, we have a meeting which we call an “Examination for Discovery.”  At this meeting, the defendant’s lawyer will ask you questions about the things which are in your “Statement of Claim” or which are in any of your documents, and how you respond to the various allegations which he has made.  After that, I will ask the defendant similar questions.

 

           Usually, at examinations for discovery, each party asks the other to undertake to give him certain information about the case and certain relevant documents.  If a request for undertakings is refused, it is sometimes necessary to apply to court for an order compelling an answer.  In most cases, there is no need to go to court.

 

           After that, there will be another meeting which is called a “mediation.”  At this meeting, there will be a “mediator” who will try to help you and the defendant to settle your matter. 

 

           After that, you have a “pre-trial conference”.  This is a meeting before a judge, who also tries to get you to settle the matter or to find ways to shorten the case.

 

           If you cannot settle the matter, then it will go to court.

 

           Very few cases go all the way to court.  Most cases are settled.  The settlement usually happens at the time of one or other of the procedures which I have described.

 

           In most cases, this is the work which I would have to do for you if the case is not settled  (bear in mind that the case can be settled at any time).

           -          Statement of Claim

                                           

           -          Read his Statement of defence, report to you, meet to discuss it,                       and sometimes also to prepare an answer

 

           -          Prepare your Affidavit of documents   

                     

           -          Read the defendant's Affidavit of documents, report to you, meet                     to discuss it

 

           -          Prepare for examination for discovery, this involves preparing                           detailed questions which I must put to the defendant, and                                       rehearsing all the facts with you

 

           -          Attend the Examination for Discovery

 

           -          Read transcript of Examination and do work required arising out                     of the examination for discovery

 

           -          Prepare for and attend mediation

 

           -          Prepare for and attend pre-trial conference.  This is a meeting                            before a judge at which the lawyers and the clients try once again              to settle the   matter or at least to narrow down what is in dispute.

 

           -          Prepare for trial.  This involves rereading and analysing all of                            documents, statements, and notes; meeting with you and your                          witnesses to prepare you to give evidence; preparing cross-                                examination of your opponent and his witnesses; researching and                  preparing legal argument.

 

           -          Trial

 

           -          Letters, phonecalls, etc.  There is always a fair amount of this,                           dealing with administrative matters, attempts to settle, attempts to                    arrange times for the various procedures, etc.  In addition, there                             are the letters and telephone calls in which I keep you informed of                       the progress of your case, something which I regard as being                             extremely important.

 

           -          In some cases it may be necessary to apply to court to compel                           answers to questions which I have put to the defendant, to compel                 him to give me certain documents, or for some other procedural                 reason. As far as possible, I try to avoid such applications to court.

 

 

At each stage, it is possible to make a reasonable estimate of how long the various steps are likely to take and what the cost is likely to be.  However, there are sometimes surprises.  Sometimes it happens that, in the course of preparation, you think of new facts, or find new documents, the result of which is that the work takes longer.  Sometimes it happens that the defendant does the same.  Sometimes the defendant raises defences which you never expected.  When such things happen, it is necessary to revise the time estimates.

 

           If you loose the court case, you will have to pay a substantial portion of the defendant's fees.  If you win, he will have to pay a substantial portion of your fees.

 

           Whenever something happens in the case, I will let you know.  Each time the defendant or his lawyer writes to me, or phones me, I will report to you.  You will always be kept fully informed of what happens and you will always be made part of the decision-making process when decisions regarding the conduct of the case have to be made.

 

 

5.2  What is Cross-Examination?

 

           A little boy is suing for damages for pain and suffering.  He was hurt in a car crash.  He demonstrates with many groans how hard it is for him to lift up his arm.  He can get only as high as his shoulder and the jury looks on with deep sympathy.  Counsel for the insurance company stands up and asks a few questions.

 

           "That arm of yours, it must be very painful?"

          

           The little boy says, "Yes."

 

           "Is it still as painful now as it used to be?"

 

           "Yes.  And sometimes it gets even worse."

 

           "Show me again how high you can lift your arm."

 

           The little boy demonstrates a second time, groaning pathetically.

 

           "Now," says counsel, "show me how high you used to lift it before the accident."  The little boy's arm shoots up well above his head, effortlessly and groan-free, and the plaintiff's case is lost.

 

           This little vignette is every lawyer's dream.  In most cases, however, cross-examination is a slow, painstaking process.  Counsel asks many boring questions.  Many seem irrelevant.  He asks question after question in the hope that the witness may say something a little suspicious, that the witness will make some small mistake upon which he can pounce.  "Aha!" he might say, "now you say that the cloud was grey, but did you not tell the court only half an hour ago that it was dark grey?"

 

           Consider this example.  An employee sues for wrongful dismissal.  She says that the boss called her on the intercom, she went to his office, he yelled some obscenities, insulted her work, and assaulted her, with the result that she had no choice but to hand in her notice.  The boss denies the whole story, he says that he never even called her on the intercom.

 

           Counsel for the employer stands up slowly, clears his throat, looks at his notes, stutters a bit.  He asks her where she was when the intercom sounded, what time of day it was, who was with her at the time, what she was talking about, why she chose that particular subject, the exact details of their conversation, what she said, what her friend said, did she discuss that same conversation with her friend later on, what did her friend remember of the conversation, did she discuss that conversation with anyone else, what did she say about it.

 

           "What kind of a boring idiot is this man?" she asks herself and then, made confident by the obvious idiocy of the lawyer, she goes on to give many facts, facts which she had not mentioned before, more allegations about how her boss had treated her  -  she feels encouraged to be confident, assertive, and aggressive.

 

           Then the friend comes, the employer's counsel asks her the same irritating questions and it turns out that, although she also remembers the intercom call, she remembers it happening in different circumstances.  The plaintiff says that she and her friend were in the lunchroom when it happened, the friend says they were in the change-room.  The plaintiff says that it happened at morning tea-break, the friend says it was at lunchtime.  The plaintiff says that they were talking about a movie called "Intimations of Immortality," the friend says they were talking about the way the boss picks his nose.  The friend says that she knows nothing about some of the important new facts which the plaintiff had so confidently added to her case.

 

           "You are intelligent people," counsel says to the jury.  "Can you believe anything that this plaintiff says?"

 

           Cross-examination is like conversation.  We all know what it is yet find it difficult to define it.  Each case is different, there are very few rules, and a good cross-examiner, like a good conversationalist, is quite different from a mediocre one.

 

 

 

 

5.3  Conduct your Affairs in a Way which might later Impress a Judge

 

           How does a judge decide what is the truth?

 

           Despite the many technicalities which fill the legal textbooks, the matter boils down to one of commonsense and experience.  A judge has no mysterious methods of finding the truth.  He listens carefully to each witness.  He uses his personal experience of the world to decide which has the ring of truth.  He uses his personal experience of human nature to decide which to believe  -  he relies on their manner, appearance, tone of voice, body language, and so on.   Sometimes there are things which can help him, for example, circumstantial evidence, documentary evidence, corroboration, and so on.

 

           There are things you can do, with complete honesty, long before any court case is thought of, to create evidence which will help you if ever you do go to court.  Consider a few very simple examples.

 

           You say that a salesman promised to deliver your car within ten days, and he says it was six months.  If you wrote to the salesman complaining that the car was not delivered despite the lapse of ten days, and he did not answer, or he phoned you with a frantic promise to hurry up, then, if the matter goes to court, that may persuade a judge that the salesman's six months' allegation is unlikely to be true.

 

           If you are a landlord and your tenant keeps paying his rent late, your tenant may eventually allege that the lease was varied by conduct to allow him to always do so.  Therefore, if you do accept his late rent, you should write to him saying that you have done so without prejudice to your right to have him pay on time in the future.

 

           You may employ a company to repair and service your machines.  If they do a bad job, you will normally simply complain on the telephone and ask them to come back and do it properly.  It may be better, however, to put your complaint in writing.  A tactfully worded email would be sufficient.  If, months later, you are faced with a court action based on a huge repair bill, you will refer to you email to show that the repair bill is not payable.

 

           A customer may complain that you have breached the terms of your agreement with him.  Instead of simply defending yourself on the telephone, it may often be a good idea to send him a tactful email explaining why you believe that you have not breached the agreement. If you have in fact breached it, you may want a letter to make it clear that you have rectified the breach.

 

           The right letter at the right time can be important.  Each case is different, many cases are extremely complex, and therefore a lot of thought must go into formulating the exact wording.  This is one area where you might be wise to call your lawyer for help, well before trouble erupts.

5. LEGAL PROCEDURE