Chapter 2

Evidence

Consists of the information that is provided in support of an argument

List advantages and disadvantages of hiring lawyers and paralegals

The advantages are: - It provides competent help and it increases the likelihood of success. - Conversations with layers are generally confidential and privileged The disadvantages: - Expensive

Describe class actions and explain when they can be used

A class action allows a single person, or a small group of people, to sue on behalf of a larger group of claimants Class actions can occur when there are: -Common issues: There must be common issues amongst the various members of the class. - Representative plaintiff: The plaintiff must qualify as a representative plaintiff. They must demonstrate a workable plan for fairly representing the interests of the class members. -Notification: A representative plaintiff must also have a workable plan for notifying potential class members. -Preferable procedure: The court must be convinced that a class action is the preferable procedure for dealing with the claims. -Certification: Assuming that the previous requirements are met, the action will be certified. Certification represents the court's decision to allow the various claims to be joined together and to proceed as a class action.

Describe contingency fee agreements

A contingency free agreement requires a client to pay their lawyer only if the lawsuit is successful

Professional Liability insurance

Allows a client to receive compensation from a lawyer's insurance company if the lawyer has acted carelessly.

Identify forms of alternative impute resolution and explain how they compare to litigation.

Alternative dispute resolution (ADR) Is any process that allows the parties to resolve their disputer without about go court. There are there major types of ADR: -Negotiation: is a discussion aimed at settling a dispute. Advantages: It tends to be quicker, less complicated and less expensive. It provides more control, helps parties remain on good terms and is private so avoids bad publicity. Disadvantages: Might not be possible is parties lack co-operation, one party may drag out proceedings, if unequal bargaining power it may not result in a fair settlement, confidentiality may be undesirable, no guarantee of success and possible loss of insurance/breach of insurance policy. -Mediation: Is a process in which a neutral party called a mediator helps parties reach an agreement. -Arbitration: Is a process in which a neutral third person called an arbitrator imposes a decision on the parties.

Appeals

An appeal court- decides whether a mistake was made in the court below The appellant- is the part who attacks the decision of the lower court The respondent- is the part who defends the decision of the lower court

Pre-trail activity

An examination for discovery- is a when the parties ask each other questions to obtain information about their case Settlement- Settle dispute out of court Pre-trail conference- is a meeting that occurs between the parties and a judge Mediation- When a neutral person (mediator) helps the parties reach an agreement

Define "costs", and identify two situations in which a court may award costs that are higher than usual

Costs are the expenses that a party incurred during litigation. 1) Solicitor-and-client basis (If the the plaintiff knew that it did not have a good claim but sued the defendant anyway as a form of harassment) 2) Costs may also be affected by an offer to settle.

Describe the court hierarchy and explain how it is related to the doctrine of precedent and the rule of law

Courts are arranged in a hierarchy according to their importance 1) Supreme Court of Canada 2) Courts of Appeal and Federal Court (Appeal Division) 3) Superior Courts, Tax Court and Federal Court (Trial Division) 4) Provincial Court The doctrine of precedent requires a court to follow any other court that is above it in a hierarchy

Administrative tribunal

Is a body, somewhere between a government and a court, that resolves issues and disputes that arise in administrative law Privative clause: Is a statutory provision that attempts to prevent a court from exercising judicial review over a tribunal decision Judicial review: Is a process aimed at determining whether an administrative body's decision is valid

A limitation period

Is a period of time within which an action must be started

Hearsay evidence

Is information that a witness heard from another person, rather than directly from the source.

A paralegal

Is not a lawyer but provides legal advice and services

Litigation

Is the system of resolving disputes in court

Judicial Review

Judicia Review can occur based on two possibilities: 1) Reasonableness 2) Correctness The rules of natural justice require that, in some circumstances, a decision must be the product of a fair process. The three remedies on Judicial Review are: Certiorari: Brings an administrative decision into a court to have it struck down Prohibition: Orders an administrative body not to proceed with a matter Mandamus: Directs an administrative body to perform its duties correctly A declaration: Is issued by a court to provide an enforceable statement of a parties rights and obligations

Plaintiff

Person making complaint

Defendant

Person whom the complain is being made

Define "pleadings" and list five types of pleadings

Pleadings are the documents used to identify the issues and clarify the nature of a dispute. The five types are: -A statement of claim: A document in which the plaintiff outlines the nature of the complaint -Statement of defence: A document in which the defendant sets out its version of the facts and indicates how it intends to deny the claim -A counterclaim: Is a claim that the defendant makes against the plaintiff -A reply: is a document in which a party responds to a statement of defence -A demand for particular: Requires the other side to provide additional information.

An assurance fund

Provides compensation to people who have been hurt by dishonest lawyers

Explain the advantages and disadvantages of small claims courts

Small claims court is a type of court that deals with disputes involving limited amounts of money. Advantages: -Faster -Simpler -Less expensive -Well suited to deal with a variety of situations that arise in the business context Disadvantages: -Geographical Limits -Types of Claims - Types of remedies - Monetary Limits

Rule of Law

States that disputes should be settled on the basis of laws, rather than personal opinions

Identify different types of trial courts and appeal courts

Trial Courts -Superior Court - Federal Court (Deal only with cases that affect the federal government) -Provincial Court (Deal with small claims/private disputes, family matters like support payments, youth matters and most criminal cases Appeal Courts - The Supreme Court of Canada

Explain the difference between winning a lawsuit and enforcing a judgement

While someone can win a lawsuit and for example be entitled to repayment, sometimes the judgement cannot be enforced for example because the judgement debtor does not have enough money or assets to pay.