Preparing for Trial

SMALL CLAIMS FORMS RELATED TO THIS SUBJECT

• Application to a Judge (SCR Form 17) 
• Summons to Witness (SCR Form 8)

 

WHAT IS THIS FACTSHEET ABOUT?

This factsheet will help you prepare for a trial in Small Claims Court.

When you prepare for a trial, there are four things which you must do.

1. You must overcome the fear of going to court;
2. You must list the things which you must prove to win your case;
3. You must know what evidence you can use to prove your case; and
4. You must become familiar with basic trial procedure

This factsheet will provide you with a step-by-step method for dealing with each of these things.

OVERCOMING FEAR OF COURT

Almost everyone, including good lawyers, worries about going to court. Most of the fear and worry is caused by not knowing what will happen in court once you get there. People worry about not knowing what to do. They worry about forgetting what they have to say. They worry about being made a fool of.

The best way to deal with these worries is to watch a Small Claims Court in action before the day of your trial. Small Claims Court is open to the public. You can sit and watch trials for as long as you want. Most people find that if they watch Court only for a short amount of time they get confused. Confusion just adds to their worries. But if you go to court and watch many trials you will become very familiar with the procedure. This will make you much more comfortable when it is your turn for trial. So the first and most thing to do to prepare for your trial is to watch other trials.

The second most important thing to do is to prepare for your trial as thoroughly as you can. This factsheet will help you do that.

DECIDE WHAT YOU MUST PROVE

The key to winning a case in Small Claims Court is to know what you have to prove. That is, you must come up with a list of things about which you must give evidence at trial.

Sometimes you will need the help of a lawyer to make your list. If that is the case, you may be able to get help from a lawyer who you consult through the Lawyer Referral Service. The telephone number for the Lawyer Referral Service is in the yellow pages. Under that service you speak with a lawyer for 1/2 hour for a $25.00 fee. For more information on how to prepare for trial, you may wish to look at “Getting Ready for Court” by the Province of British Columbia.

Once you have a list of things to prove, that list should be made part of a Trial Preparation Worksheet. Click here to view a sample Trial Preparation Worksheet dealing with a motor vehicle accident.

WHAT EVIDENCE YOU CAN USE

When you want to prove something in Court there are certain types of evidence which can be used. These are as follows:

1. The parties (that is the Claimant and the Defendant) can tell the Judge what they have personally seen or done;
2. The parties can be asked to admit certain things;
3. Witnesses can tell the Judge what they have personally seen;
4. Things relevant to the case can be shown to the Judge. For example, if you are suing someone because they broke a car tail light, you could bring the broken tail light to Court;
5. Photographs;
6. Maps and diagrams;
7. A written opinion of an expert.

Below are some things you should know about each of these types of evidence.

Witnesses

You can give evidence in your own case. You can also call witnesses. Only those people who have some personal knowledge of the events should give evidence. It may be helpful if a witness makes notes of what they are going to say. That way the witness can refresh his or her memory before trial.

Summons to Witness

Necessary witnesses should be summoned and not merely asked to testify. Your case could be severely undermined if a crucial witness who promised to appear fails to do so. Summoned witnesses are under a legal obligation to come to Court. Their failure to appear will allow you to ask for an adjournment until they are available to testify.

Click here to view a sample of a completed Summons to Witness form.
Click here to obtain blank Summons to Witness forms you can use.

After you have filled in the form, it should be served on the person being summoned at least seven (7) days before the trial date. The person being summoned must also receive with the Summons enough money to pay for travel expenses to get to court.

Documents

Before a document (such as contract) can be used as evidence someone has to tell the Judge who made up the document and what it’s about. That may be the Claimant or the Defendant or it may be a witness.

Things

The same rule applies to physical objects. Someone must tell the Judge what the physical object is and what it has to do with the case. For example, if you are giving evidence you might say, “This was the tail light which Mr. Brown’s car hit on November 22, 2000.”

Maps and Diagrams

A witness must tell the Judge that they know that the map or diagram accurately shows what it is supposed to. For example, if a diagram is of a room showing the location of the furniture, a witness should say that they prepared the diagram after measuring the room. The witness should also indicate the scale of the diagram.

Photographs:

When a photograph is used as evidence, the person who took the photograph should be called as a witness to say that the photograph accurately looks like the real thing which was photographed. The photographer should also tell the Judge the time, date and place that the photograph was taken.

Expert Evidence

An expert is someone who possesses special knowledge of a subject over and above that of the average person. To use expert evidence in Court it is first necessary to have that evidence written down. An expert’s training and experience should be listed. Then the expert should indicate that he looked at whatever it is he is going to give evidence about. Then the expert should write out his or her opinion. The written expert opinion must be given to the other side in the lawsuit 30 days before trial. Then, rather than having to call the expert to give evidence at trial, the Judge can merely be given a copy of the expert’s opinion. Only if the person on the other side of the lawsuit gives notice 14 days before trial that they want the expert present in the Court do you have to make sure the expert is in the Court by summoning the expert.

NOTE: If you cannot give the other side a copy of the expert opinion 30 days in advance, you should still give a copy to the other side. You will then have to ask the Judge’s permission to use the expert’s opinion. The Judge can grant you permission but does not have to.

Affidavit Evidence:

An affidavit is a written document in which a person swears certain things are true. A Judge has the authority to allow you to use affidavits but you should not count on being able to use them. Usually persons giving evidence must be present in Court. This is because when a person is giving evidence in Court, that person’s evidence can be tested as to its truthfulness by cross-examination. If only an affidavit is presented to the Court, there is no way for the other side to cross-examine the person who made the affidavit.

THE TRIAL PREPARATION WORKSHEET

A useful aid in getting ready for trial is a Trial Preparation Worksheet. One one side of the Worksheet you will list the points you must prove to win your case. On the other side of the Worksheet you will list the evidence which you will use to prove those points. To see how a Worksheet should be prepared, let’s use as an example a case dealing with damage to a car caused by a motor vehicle accident.

SAMPLE

TRIAL PREPARATION WORKSHEET

MOTOR VEHICLE ACCIDENT CASE

THINGS THAT MUST BE PROVEN	EVIDENCE
JURISDICTION – GEOGRAPHICAL	The lawsuit is being brought in the Victoria Small Claims Court. The Small Claims Court Clerk says that the geographical area covered by the Court includes Victoria, Oak Bay, Esquimalt and Saanich. The Clerk says the Judge will know this. The accident occurred in Oak Bay. The location of the accident can be proven by me (the Claimant) when I testify at the trial.
JURISDICTION – MONETARY	Section 3(d) of the Small Claims Act says the Small Claims Court has jurisdiction in cases dealing with damages not exceeding $25,000. I can show the Judge the written opinion from Joe Watt (bodyshopman) that the amount of damage is $1550.00. I also have Bill Wright’s (bodyshopman) written opinion that the damage is worth $1675.00.
JURISDICTION – TYPE OF CASE	Section 3(a) of the Small Claims Act says the Small Claims Court has jurisdiction in a claim for damages. My car was damaged. The Defendant was negligent because he went through a stop sign without stopping.
IDENTIFICATION OF THE DEFENDANT	The Defendant’s identity can be proven by me and two of my witnesses, Arlene Harts and Joanne Wolf. Both will given evidence at the trial.
DUTY OWED TO THE CLAIMANT BY THE DEFENDANT	The law is that all drivers on highways owe a duty to all other drivers to drive carefully and not negligently. The Judge will know this.
DEFENDANT DID NOT PERFORM THE DUTY AS REQUIRED	I can present a diagram of the intersection where the accident occurred showing : the direction I was driving , the direction the Defendant was driving, and the location of the stop sign. I can give verbal evidence that the Defendant went past a stop sign when I was in the intersection and that I could not take any steps to avoid the accident. Witness 1 (Arlene Harts) can confirm that the Defendant went through the stop sign. Witness 2 (Joanne Wolf) can show the Judge photographs showing the intersection including the stop sign) and showing two cars (Defendant’s car hitting the back right side of my car).
DAMAGE CAUSED BY THE DEFENDANT	I can give evidence of no previous damage to my car. I can also give evidence of the damage that was caused to my car (that is: the rear tail light was broken and the bumper and trunk were damaged).
VALUE OF THE DAMAGE	Experts 1 & 2 (bodyshopman, Joe Watt and Bill Wright) have prepared estimates of the cost of repairs to my car. These estimates have been written down. Rule 10(8) of the Small Claims Rules says repair estimates are not to be considered expert evidence. So I cannot rely on Rule 10(4) to give me the right to use the written statements at trial. But Rule 10(8) does require that I serve the Defendant with copies of the estimates at least 14 days before trial. I will serve the estimates on the Defendant and ask the Judge to allow the statements to be evidence. The Judge has discretion to do so under s. 16 of the Small Claims Act.

 

EXPLANATION OF THE TRIAL PREPARATION WORKSHEET

On the left side of the Sample Trial Preparation Worksheet that you just read is the List of Things THAT MUST BE PROVEN. A lawsuit which concerns a motor vehicle accident usually is based upon the law of negligence. To succeed in a lawsuit based on negligence, the Claimant (that is the person suing) must prove:

SMALL CLAIMS JURISDICTION

Jurisdiction is something which must be proven in every case that goes to Small Claims Court. There are three things which must be proven to show that a Small Claims Court has jurisdiction to hear a case. First, it must be proven that Small Claims Court has geographical jurisdiction. This means that the person suing must show either:

1. the person being sued lives within the territorial limits of the Small Claims Court; or
2. that the cause of the suit (which is called the “Cause of Action”) happened within the territorial limits of the Small Claims Court.

Thus, if you are suing for damage to your car from an accident you must show either that:

1. the Defendant resides in the geographical area served by the Small Claims Court; or
2. the accident happened in the geographical area served by the Small Claims Court.

The second part of jurisdiction deals with the type of the case which is being brought. Small Claims Court can hear cases dealing with:

1. debt or damages;
2. recovery of personal property;
3. specific performance of an agreement relating to personal property or services;
4. relief from opposing claims to personal property.

The Small Claims Court cannot hear certain types of cases. For example, it cannot hear cases dealing with libel, slander, malicious prosecution, cases dealing with a landlord, or cases dealing with title to land.

The third part of jurisdiction deals with the amount of the claim. Small Claims Court cannot hear cases where the value of the claim exceeds $25,000.00 (not counting interest and costs) unless the Claimant gives up his or her right to claim the amount in excess of $25,000.00.

THE DEFENDANT

The next thing you must prove is that you are suing the right person. This again is something which must be proven in every case. It is obvious that if you cannot prove who owes you money or who injured you, the Court will not let you win.

DUTY ON THE DEFENDANT TO ACT OR BEHAVE IN A PARTICULAR WAY TOWARD THE CLAIMANT

In a case involving a car accident, the Claimant may not have much difficulty proving the Defendant has a duty to drive carefully. This is because Judges know that persons driving on roadways owe each other a duty to drive carefully.

THE DEFENDANT NEGLIGENTLY PERFORMED HIS DUTY TO ACT OR BEHAVE AS REQUIRED

To meet this requirement the Claimant must prove that the Defendant did something wrong.

For example,

1. Did the Defendant fail to keep a proper lookout?
2. Did the Defendant fail to see if the coast was clear before going through an intersection?
3. Did the Defendant fail to yield as required by a sign?
4. Did the Defendant drive too fast?

These are just some examples of the things that a Claimant might prove to show that the Defendant did not behave as he was supposed to.

THE DEFENDANT’S NEGLIGENT ACT WAS THE CAUSE OF THE DAMAGE TO THE CLAIMANT

The Claimant must show that damage to himself or his car was caused by the improper driving by the Defendant. For example, let’s suppose the Defendant ran through a red light. The Claimant would have to give evidence that it was because of the Defendant’s running the light that the accident happened and that the Claimant’s car was damaged.

HOW MUCH THE DAMAGE IS WORTH

The Claimant must prove what it will cost to be put in the same position he or she was in before the accident. So if the Defendant ruined a back bumper and rear tail light, the Claimant would have to prove the cost of repairing those things.

THE EVIDENCE

The Claimant considered each type of evidence listed above to see whether there was something or someone who could help him prove each point which must be proven. The Claimant then listed the evidence available on the Trial Preparation Worksheet next to the point it could be used to prove.

QUESTIONS

After the Trial Preparation Worksheet is completed it is helpful to prepare questions for your witnesses before the trial. These questions should also be reviewed with your witnesses before the trial. It is important that you know the answers your witnesses will give. Knowing the answers will help to avoid confusion and unexpected replies which may damage your case. Reviewing your questions with a witness before the actual trial is not an improper practice. You are not “making up evidence or asking your witness to lie.” You are merely ensuring that you know what is going to be said. Anyone testifying at the trial will be doing so under oath or affirmation. Any person telling falsehoods may be subject to charges of perjury.

If you are not calling any witnesses but are only going to be giving evidence yourself, you should also prepare. The best way is to make a list of the points you want to tell the Judge. You should take your list with you into the witness box and ask the Judge if you can refer to it. Before you finish giving evidence, check your list to make sure you have told the Judge all you want to tell.

NOTE: Witnesses waiting to give evidence should wait outside the courtroom.

ADJOURNMENTS

If you discover that you will need an adjournment of the trial, advise the other party without delay. If the other party agrees to the adjournment, a letter signed by both of you should be delivered to the Registry requesting an adjournment and a new trial date. If the letter arrives in time neither party will have to appear in Court on the day set for trial.

Telephone the Registry the day before the trial date to make sure that the letter was received and the adjournment has been processed. The Registry will send you a new Notice of Hearing.

If the other party will not co-operate and there is enough time before trial, you should make an application to a Judge to change the date of trial. To do this you will have to fill in and file at the Small Claims Court Registry an Application to a Judge form. The registry staff will fill in on the form the date on which you will have to appear in court to make your request. The Application form will have to be served on the other parties to the lawsuit at least seven days before the date set for you to appear in Court. For more information about serving documents see Factsheet 6.

If there is not enough time before trial to make an application to adjourn the trial, you or someone representing you, will have to appear in court on the date set for trial to request the adjournment. Rule 17 (5.1) says that a Judge can only adjourn a trial if the the Judge is satisfied that the postponement or adjournment is unavoidable, and an injustice will result to one of the parties if the trial proceeds.

If the request for an adjournment is made within 30 days of the trial date, a fee may be payable to have the trial rescheduled. That fee will be payable within 14 days of an adjournment being granted (unless the Registrar extends the time for payment). Failure to pay the fee may result in the claim being dismissed if the party seeking the adjournment was the Claimant; or the Reply being set aside and an order being made against the Defendant, if the Defendant was the party who sought to adjourn the trial.

THE DAY OF THE TRIAL

Make sure you bring all your proper papers and evidence to Court with you on the day of your trial. Arrive earlier than the time appointed for the trial to begin. When you arrive at the Courthouse find the trial list, which will usually be posted somewhere near the Courtrooms. This list tells which cases are to be tried on that date and in which particular Courtroom they will take place. If your case is not on the list, then you should immediately check with the Court Clerk or Registry. Otherwise, go to the proper Courtroom and be seated in the gallery.

ETIQUETTE

Always conduct yourself with respect while in the Courtroom: dress neatly and remain silent while Court is in session. Rise whenever the Judge enters or leaves the Courtroom. When speaking to the Judge, always stand, speak in a loud, clear voice, and address the Judge as “Your Honour.”

THE READING OF THE LIST

When the Judge first enters the Courtroom, the cases to be heard that day will usually be read out. When your case is called stand up and identify yourself to the Court. This will let the Judge know that you are present and ready to proceed. You should then remain seated until your case is called again. When your case is called come forward and reintroduce yourself before taking your place at the litigant’s table. You can then begin your case.

FAILURE TO APPEAR

If both the Defendant and the Claimant fail to appear the Judge may dismiss the Claimant’s case.

If the Defendant is not present in Court, and if no adjournment has been requested, the Claimant may not have to proceed with the trial and an Order may be made against the Defendant. However, if the claim is for damages (i.e., where the Claimant is suing for monies to be applied against damages caused by the Defendant) the Claimant must still prove the amount of damage before getting an Order, even when the Defendant fails to appear.

THE PARTS OF A TRIAL

If both parties are present in Court, the trial proceeds in the following manner:

1. Witnesses should be asked to leave the Courtroom and wait outside the Courtroom until called to give evidence;
2. The Claimant and her witnesses give evidence and are cross-examined;
3. The Defendant and her witnesses give evidence and are cross-examined;
4. The parties sum up their case;
5. The Judge makes a decision.

DEALING WITH A COUNTERCLAIM

Where there is a Counterclaim, the Judge may decide to deal with the Claim and Counterclaim separately. However, usually the order of the trial remains the same. That is, the Claimant and her witnesses give evidence first and then the Defendant and her witnesses give evidence. The only difference is that each party must attempt to prove or rebut the elements of the Counterclaim when presenting their side of the case.

QUESTIONS FOR THE WITNESS

Each witness who testifies must first swear or affirm to tell the truth. Then the witness is asked questions by the person who called the witness. The witness is then cross-examined by the other side.

Use the list of questions which you made up in advance. Your witness will know what to expect and you will know what answers will be given.

CROSS-EXAMINATION

Most people find cross-examination the most difficult part of their case. This is because they think that they must somehow “break down” the witness and force the witness to admit the other side is right. If your goals are less ambitious, you will find cross-examination useful.

Cross-examination is best used to bring out information that the witness has which is important to help prove things you need to prove to win your case. For example, suppose you left some things with a person to look after. While with that person your things were stolen. You sue the person. What you need to prove is that the person failed to take reasonable precautions to protect your things. On cross-examination you might get the person to admit that they did not have a guard dog, that they did not check to see that all the windows were locked when they left, and that no light was left on at night to discourage burglars.

Cross-examination is also used to try to weaken the other side’s case by making the witnesses’ evidence seem less believable, or by reducing the importance of the witnesses’ evidence.

For example, suppose a witness says he saw you go through a stop sign at night. You could ask questions such as where was he standing, and what was the lighting like. The goal is to try and show that the witness could not have seen things as clearly as he is trying to make the Judge believe.

In conducting cross-examination, remember that:

1. You are not giving evidence, only asking questions. Do not turn to the Judge to offer your version of the same matters the witness just testified about; and
2. Do not argue with the witness.

JUDGE’S QUESTIONS

Frequently during or after the testimony of witnesses, a Judge will ask questions to assist in understanding the evidence and to clarify things. This should by no means be taken as an indication that the Judge will conduct your case for you. The responsibility for presenting a full case rests with you alone.

OBJECTIONS

You may object to unnecessary or irrelevant questions. In law there are many other reasons for objecting to questions. However, in Small Claims Court you will not be expected to deal with these technicalities.

SUMMATION

After all the evidence on both sides has been heard, it is time for “the summation.” Each party is given a final opportunity to convince the Judge that they should win. The summation is not another chance to give evidence. You may only refer to points on which evidence has already been given. You should follow the outline you created for your Trial Preparation Worksheet. You can tell the Judge what things you had to prove and what evidence was given to prove each thing.

COSTS

The parties should ask for their Court costs. Although lost wages for a day in Court cannot be claimed, extra costs such as expenses incurred by a person who was required to travel a substantial distance to attend the trial should be brought to the attention of the Judge.

THE DECISION

The Judge will usually make a decision after a few minutes deliberation. However, the Judge may wish to consider the case and make an Order at a later date. If that happens, the Order and reasons will usually be read in open Court at that time.

THE NEXT STEP

If you are successful, you may wish to read Factsheet 15 which is called “An Overview of Collection Procedures.” If you are unsuccessful, you may wish to read Factsheet 14, called “How To Appeal An Order Made in Small Claims Court.”

Prepared by Glenn Gallins
Revised March 2008
Funded by the PLE Program of the Legal Services Society