Here is some general information on how most cases proceed once the hearing or trial starts. This is an outline of the process. It is not meant to train people to be lawyers. It is meant to give self-represented people a sense of how things will work. Lawyers can help people develop their cases to present in court, or can be hired to do this part of the case.
The Applicant’s case
The Applicant (the person who started the court application) presents their case first (whether they have a lawyer or not).
The Applicant usually ‘gives evidence’ first and then each of their witnesses, in turn, gives their evidence. This process is often called ‘testifying’ or being ‘called to testify.’
‘Giving evidence’ means witnesses and parties have to take the witness stand to provide the facts of the case and any documents or physical evidence (like photos or reports) that they want to go into evidence. Evidence can be made up of verbal testimony, affidavits, expert reports, sworn documents, photos or other information that is properly presented to the court that people want the judge to know about so that the judge can make a decision using that information.
The process of ‘giving evidence’ may involve some or all of the following:
the applicant and their witnesses give evidence separately (generally starting with the applicant)
o the court reporter gets each witness to swear or affirm to tell the truth at the start when they go to the witness stand and before they give their testimony
o witnesses have to be present in court to give evidence, except under very exceptional circumstances. If a person wanted to give evidence other than by being in court, they would have to have made a special motion to the court beforehand to request this, in most cases. It is possible for both people to ‘waive’ their right to have the witness present and allow the witness’ affidavit to go into evidence (become part of the evidence the judge considers to decide the case) without ‘direct’ or ‘cross-examination.’
The Applicant asks each of their witnesses open-ended questions to bring out the relevant and appropriate evidence that is within that witness’ personal knowledge. This is called ‘direct examination’ or ‘direct.’
Witnesses are not allowed to give evidence about what they believe to have happened, what they think might have happened, or express an opinion about any matters that require an expert opinion, unless they have been qualified to give an opinion as an expert. In other words, witnesses have to have special knowledge and/or experience to give evidence about someone’s mental health diagnosis or medical diagnosis.
Expert witnesses normally have to have submitted a written report and confirmation of their qualifications ahead of time. There are many court rules and evidence rules about experts.
The amount of direct examination that is allowed to be given may be limited if affidavits have already been filed. These issues are normally discussed at the time of any conference held before a hearing or date assignment conference held before a trial. If you have not had a conference, then you should ask at the beginning of the hearing what the arrangements will be. The amount of court time given to a case will often limit the amount of direct examination.
Questions asked in direct examination are not usually supposed to be ‘leading.’ This means that the person asking the question is not supposed to ask it in a way that gives away the answer to the person answering the question. An example of a way to ask a question in a non-leading way would be: ‘Where were you after dinner on the night of April 30, 2012?’ Asked in a leading way, the question might be: ‘You were at your wife’s home at 7 pm on April 30, 2012, weren’t you?’
Applicants can request that appropriate documents or materials be entered into evidence as ‘exhibits.’ This process must be done with each witness who has written documents or other materials that are important to the case. There are a number of special rules of evidence that apply to this process. Generally, the proposed exhibit has to be shown to the witness, who has to identify it (by answering who, what, when, where and why types of questions). A witness has to have personal knowledge of the item in question. For example, if you want to put a photograph into evidence, then you may call the person who took the photo, ask them to identify who took it, when they took it, what they were taking a photo of and whether it represented what they were taking a photo of. They would also need to testify as to whether it had been altered in any way.
Make sure you have copies of exhibits for yourself, the other party, the witness and the judge.
The court reporter will take the proposed exhibit and mark it with a special stamp and label it with a letter or number to identify it. The original should be used in every case, whenever possible. You will leave the original exhibit with the court.
Normally witnesses’ affidavits have to go into evidence by this process too as filing them in the court file is not enough.
After the Applicant and each witness for the Applicant gives evidence, the Respondent, or their lawyer, has a chance to ‘cross-examine’ each witness. The process of the Respondent asking the Applicant’s witnesses questions (or the Applicant asking the Respondent’s witnesses questions) is called ‘cross-examination’ or ‘cross.’ This usually happens immediately after the witness has given their ‘direct evidence.’ Sometimes cases have to break for lunch or go on longer than expected, so witnesses may have to come back to finish the process.
Questions in cross examination are asked in a different way than in direct examination. They are allowed to be leading. This is because you want to put a question to the witness in such a way so they will agree with what you are trying to say.
Your job in cross examination is not to have an argument with the witness. The witness always should have a chance to answer the question that is asked. Give the witness time to respond before moving on to the next question. The witness may ask you to repeat the question or for you to ask it in a different way if they do not understand what you mean.
Here are some tips:
make sure that you know what the person is likely to say in responding to your question
ask clear questions, so that the witness knows exactly what you are asking for
do not string a bunch of questions together - break them up and ask them separately
remember that judges may get as much of an impression of the person asking the question as they do of the person answering the question during this process
Doing a good cross examination is not easy. Most people need special training and experience to know what to do and how to do it well. Lawyers are specially trained to do cross examinations.
The Applicant may have more than one witness. In this case, the Applicant can decide in what order their witnesses will testify. If the Applicant has a lawyer, then the lawyer would ask the Applicant open-ended questions and go through their evidence. If the Applicant does not have a lawyer, then the Applicant must state their evidence. This does not mean that the Applicant just gets on the stand and gives a speech or talks about anything they want to talk about or gives a legal argument as to why the judge should see things their way. It means that the Applicant goes through the facts of the case in some logical order so that the judge becomes aware of all of the relevant information that is needed to deal with all of the issues before the court.
There is also a process called ‘re-direct.’ This is when the Applicant or Respondent gets to ask questions of one of their own witnesses after cross examination has taken place. There are very strict rules on when this is allowed and what can be asked. Generally speaking, the rules are made so that only new information that came out in cross-examination can be asked about in re-direct, not anything that you already dealt with in direct examination. It requires skill to do this well, and to know when it is ok to ask questions. Lawyers get special training on how to do this.
The Respondent’s Case
The Respondent gets to present their case once the Applicant and their witnesses have given their evidence. This follows the same basic process noted above.
Other important things to know
One of the hardest things about doing a trial or hearing is that you have to take notes of what was said. If you do not, then you run the risk of not remembering what was said. You will also find it hard to ask cross examination questions, re-direct questions, or to make your argument in the summation at the end of the case.
Exclusion of witnesses
Most witnesses should not be present when the Applicant or Respondent or other witnesses give evidence. This is so that they will not be influenced by the information given by other people. The process of asking witnesses to leave the courtroom until they are called to give evidence is called ‘exclusion of witnesses.’ You usually have to ask for this to happen.
Objections to evidence, the way questions are being asked, or the answers that are given, can be made at any time by either person. This is done if one of the parties or the witness is not following the rules of evidence. Lawyers know the rules because of their training and experience. This is one of the most challenging areas for self-represented people as there are many rules that apply and it is often hard to know when to apply them. If a person does not object to a certain question or answer at the time that it is being asked or answered, then they cannot argue later on that the judge should ignore the question or answer. Judges will rule on objections at the time the objection is made, unless the situation is unusual.
If you are making an objection, you must tell the judge what the objection is and what the exact problem is. You cannot just say that you object and give no reasons. You may have seen people do it like this on television, or in movies, but it is not the legal way to do it.
At the end of the hearing
At the end of the hearing or trial, the parties or their lawyers do what are called ‘summations.’ A summation is a legal argument given out loud (verbally) in the courtroom at the end of the case. In the summation, the parties or their lawyers review the evidence. They will tell the judge what they believe the evidence revealed about the facts of the case, trying to convince the judge that the evidence should be seen from their point of view. Then the parties will apply the facts to the law and make their legal argument as to what the judge should order and why. This is not the time to bring up something new – you cannot now bring up information that was not dealt with in the actual case. If it was not put into evidence, then you cannot refer to it when you are making your summation.
The Respondent generally goes first to present their summation if the Respondent has presented evidence. The Applicant will normally go second. Then the Respondent has a chance to do a further argument, called a ‘rebuttal.’ This is not meant to re-hash the whole argument made before, but to concentrate on the parts of the Applicant’s argument that the Respondent did not have a chance to respond to because they started the summation process.
Remember that you cannot interrupt the other person while they are speaking. You may have problems with something that they have said. If you do, keep notes while they are talking and deal with it in your own summation or rebuttal.
The judge may ask you questions when you give your summation or rebuttal argument. Do not argue with the judge. You can use the facts and the law to persuade the judge to see the case from your point of view. Judges sometimes ask questions so that they are sure they understand what you are trying to say. Do not assume that they are agreeing or disagreeing with you when they are doing this.
In many cases, judges want people to exchange and file a written legal argument on a certain date before the case goes to court. The judge may also ask you to do this following the hearing or trial. A written legal argument is called a ‘legal brief’ or ‘brief.’ This brief sets out:
what you expect the facts to be (or what they were stated to be in court)
what the issues are and the legal argument, including what legislation (laws), rules or regulations you are referring to and any case law (previously decided cases that you are relying on to make your case).
Judges usually give directions about filing legal briefs when people go to a docket appearance, conference or date assignment conference. You should give copies of the cases you talk about in your legal brief to the court and the other party as well. A judge can ask for legal briefs to be done after the case finishes too. A lawyer can help people prepare these if requested.
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