A civil action consists of essentially six steps: (i) pleadings; (ii) discovery; (iii) mediation; (iv) pre-trial; (v) trial; and (vi) appeal. The action can be settled at any time during the litigation.
The pleadings refer to the exchange of documents which frame or define the legal action. The plaintiff (the party initiating the claim) is required to commence the action with the delivery of the Statement of Claim.
The Statement of Claim must identify the following:
The Statement of Claim, once issued, must be personally served on the defendants, who are the parties the plaintiff is claiming relief from.
The defendant, after it has been served with the Statement of Claim, must deliver a Statement of Defence, outlining the legal basis for why the plaintiff should not be granted the relief that they have requested.
Discovery is a process where all parties fully disclose all relevant evidence. Discovery consists of (i) disclosure of all relevant documents and (ii) oral examination of each of the parties.
Documentary discovery is accomplished through the assembly of the Affidavit Documents, which is a descriptive listing of all relevant documents. Affidavits of Documents are prepared by all parties to the litigation and exchanged prior to the holding of the oral examination for discovery. The parties have a right to examine documents relevant to the action.
Oral examinations for discovery are scheduled after the Affidavits of Documents are exchanged. They are held in the County in which the parties reside and take place before a court reporter. The examinations are for the purpose of allowing each party to be questioned, under oath, regarding all matters relevant to the issues involved in the litigation. Every party has their lawyer present during their examination. The hope is that when all relevant information is exchanged, the parties will be in a better position to properly analyze the case’s value.
Depending on the jurisdiction, a mediation may be mandatory or optional. A mediation is an opportunity to set aside a day to focus on trying to settle the case. If the mediation is successful, the case will be settled and the injured person will receive a cash settlement for their loss. A mediation is simply a settlement meeting with the assistance of a mediator to try and resolve the action.
4. Pre-Trial Conference
Sixty days following the filing of a Trial Record, a pre-trial conference can be arranged with the court. A pre-trial is a meeting with a Judge to discuss the case with a view to defining the issues for trial and to encourage a settlement between the parties.
The judge at the pre-trial or settlement conference will also ensure that both parties are ready for the trial of the matter.
A trial is a court process where each party presents their evidence and legal argument before a judge. It is also possible that the trial may be presented to a judge and a jury. Following the presentation of all evidence the judge and/or jury will render a decision. If the matter proceeds to trial, the decision making process is left in the hands of the judge and/or jury.
Each party to the action, if not in agreement with the decision of the trial judge, has the right to appeal the decision. An appeal must be initiated by the service of a Notice of Appeal within 30 days immediately following the delivery of the decision of the trial judge. For an appeal to be successful, the party appealing must show that there was an error in law during the trial that would justify setting aside the judgment and ordering a new trial.