Phase 3A – Trial
One party (usually the Plaintiff) will need to file a document to have the matter set down for a Trial date. The Trial date is usually, depending on the court location, 4 to 8 months after the Settlement Conference. During that time, the parties can of course continue to try to settle the matter. If however settlement cannot be reached, at least 30 days prior to the Trial, both parties have to make sure that all documents have been served and that they have served and filed a List of Proposed Witnesses.
Offer to Settle – there are great reasons to prepare and serve an Offer to Settle the matter, the primary reason being the possible doubling of costs if you are the successful party at Trial. If you wish for Miller Paralegal Services to prepare and serve an Offer to Settle, we will require written instructions from you.
In most jurisdictions, Trials commence at 10:00 a.m. and go until 4:30 – 5:00 pm. with approximately 4½ to 5 hours of actual trial time. There may be more than one matter on the Trial docket so, even if that is “your trial date”, you may not be heard on that date.
If your matter is called, the process is as follows:
Plaintiff’s side goes first – usually with the Plaintiff testifying first and then having supporting witnesses follow. If there are issues of later witnesses hearing what earlier witnesses have said, there may be a request for witnesses to remain outside the court room until they are called to testify.
For each of the Plaintiff’s witnesses, the Plaintiff’s representative will ask questions (what is called in-chief) to help the Plaintiff tell the story in a chronological easy-to-understand manner. The Defendant’s representative will then ask their questions (what is called cross-examination) to try to bring out aspects of the matter in a light more favourable to the Defendant(s). The Plaintiff’s representative will then have an opportunity to ask clarifying questions (what is called re-examination) to try to clear up any confusion created by the second sets of questions (but no new lines of questions).
Once the Plaintiff’s witnesses are through this process, the Defendant and their witnesses will be asked questions in-chief by the Defendant’s representative, cross-examined by the Plaintiff’s representative and re-examined by the Defendant’s representative.
If after the conclusion of the Defendant’s case the Plaintiff has additional evidence to respond to what came out unexpectedly in the Defendant’s case, the Plaintiff will have an opportunity to use the same process for what is called reply evidence.
Upon completion of all testimony, the parties will then do submissions which summarize the evidence and why the Deputy Judge should rule in their favour. Again, the process is Plaintiff first, Defendant second and Plaintiff reply if needed. For complex cases, the Deputy Judge could ask for written submissions following that same process. For simpler cases, the Deputy Judge could render a decision immediately following the conclusion of submissions but in complex cases may indicate that they will release a written decision (usually within 30-60 days).
Phase 3B – Assessment Hearings
An Assessment Hearing proceeds as a Trial except the defendant is not present – it is a one-sided Trial. Because the Defendant did not file a defence, the Defendant is considered to have admitted the allegations made in the Plaintiff’s Claim. As a result, the Plaintiff does not have to prove that the Defendant is liable (i.e. that the defendant is in fact responsible) – the Plaintiff only needs to prove the amount alleged to be owing by the Defendant for the damages caused and expenses incurred in fixing that damage.