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104 Cards in this Set
- Front
- Back
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What is the purpose of Disclosure of Information? |
assists in gathering evidence and information for the lawsuit |
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What does Disclose of Information include? |
Disclosure of Records and Questioning (orally or in writing) |
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What is Disclosure of Records? |
allows each side to get access to the other party's relevant records |
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The Plaintiff must serve an Affidavit of Records on all other parties within __ months of the ____________ |
3 months of the Statement of Defence |
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The Defendant must serve their Affidavit of Records within __ months of being served the Plaintiff's Affidavit of Records. |
2 months. |
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Parties have an ongoing obligation to... |
disclose relevant records once Affidavit of Records is served. |
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Parties have this right in Affidavit of Records. |
right to demand, inspect and take copies of any record referred to in pleadings, particulars, or, Affidavits. |
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What is the Affidavit of Records? |
"record" includes the physical representation or record of any information, data, or other thing capable of being represented or reproduced visually and/or by sound
must list ALL relevant and material records |
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How do you know if a record is relevant? |
Rule 5.2 states if significantly helps determine one or more of the issues raised in the pleadings it could ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings |
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Aside from relevant material what must an Affidavit of Record show? |
1 which records are in the custody or possession of the party making the affidavit of records 2 which records the party objects to producing, and the reasons they object 3 which records are no longer in the party's possession of custody 4 that the party has not and has never had any other relevant and material records 5 when the other party can inspect the records that aren't objected to |
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Documents that are privileged must still be listed on the Affidavit of Records under on of the following general categories, list them: |
without prejudice communications communications and copies of communications between solicitor and client solicitors' work product records made or created for the dominant purpose of litigation |
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What is something important to remember about Affidavit of Records? |
It does not contain the actual records just a LIST of them with a note when and where they can view said records but you're under no obligation to help them |
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When sorting records what are three categories? |
records the lawyer does not object to producing records the lawyer does object to producing records that the lawyer or the client had but no longer has |
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How does one organize records? |
chronological listed individually similar records grouped into bundles any other way that makes sense |
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Any disputes over privileged, "without prejudice" and what records should be produced that cannot be resolved must.... |
go to court to settle a dispute over admission - application will be heard by a master (judge that deals with procedural matters) |
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Due to ongoing obligation to disclose relevant and material records parties must prepare, file and serve this document as the lawsuit progresses and more records are obtained. |
Subsequent Disclosure of Records |
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What happens after Disclosure of Records? |
Step 2 of Disclosure of Information: Questioning which is a pre-trial cross-examination, under oath in the presence of lawyers and court reporters. This allows either party to verbally question each other to obtain relevant information to the case. |
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What proceeding may stop a lawsuit from going to trial? |
Questioning |
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What is cross-examination? |
Party being questioned by the other side's lawyer. |
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If you lie under oath, what happens? |
Perjury, you may face a minimum of 14 years in prison. |
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Only the parties present in a lawsuit may be present, what happens with you sue a corporation? |
A corporate representative steps in. |
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Who is NOT present at a questioning? |
Witnesses |
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What are the five restrictions on questions at a Questioning? |
No questions may be asked if they are irrelevant privileged abusive/oppressive asking to provide a written response or diagram in response of law rather than fact |
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What are the four things Questioning accomplishes? |
1. Become familiar with the other side's case and interpretation of facts and prepare for trial knowing what the other side's case will be. 2. Allows lawyer to assess how his/her client will handle themselves at trial with response to cross-examination 3. Questioning is under oath, which means if answers change during trial that differ from transcript the other side will question the credibility of the other party's side. 4. Promotes settlement in terms of allowing the lawyer to assess the strengths and weaknesses of their case v. other sides and how effective their client will be at trial. |
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Questioning usually occurs once in which both parties cross-examine each other except... |
if the Defendant brings in a third party since they have 3 months after filing and serving their Statement of Defence to bring in a third party. |
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List three places Questionings may happen in: |
law firm's boardroom, library or lawyer's own office. |
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Plaintiff's lawyer usually starts this informal process.... |
Questioning |
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What is the order for who gets alerted of a Questioning? |
Lawyers Court Reporter Client |
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What happens if you do not attend an informal invite to Questioning? |
You get a formal invite. |
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What happens if you do not attend a formal invite to Questioning? |
You are held in contempt of court. A court order will be issued. |
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How do you go about scheduling a FORMAL Questioning? |
1. Confirm date for Questioning with lawyer and client. 2. Reserve the date with the court reporting agency 3. Prepare formal document compelling party to attend Appointment of Corporate Representative - no legal document just ask corporation to find a legal representative and confirm who this individual is Appointment for Questioning - document that notifies other parties when and where Questioning will be.
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What is stated in a formal Appointment for Questioning? |
Allowance, When and Where it is, Consequences of not attending |
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When must appointment for Questioning be filed and served? |
No later than 20 days before appointment. |
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When must you pay allowance and what is it? |
When you compel another party to attend Questioning. It's money served with the Questioning for expenses incurred. |
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Allowance is paid for procedures such as... |
Appointment for Questioning Compel a witness to attend trial Jurors if trial is being held before a civil jury |
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What do allowances include? |
travel expenses, accommodation meals |
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What is per diem? |
Per day - $50 |
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True or False: Allowance is charged to a lawyer's general account. |
FALSE. Charged to trust account as general account will mean it is a disbursement and it will be charged back to the client. ILLEGAL. |
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True or False: If client fails to attend formal Questioning the lawyer charges allowance to their account. |
False. Lawyer reimburses other side. |
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Aside from contempt of court how to you get a client to attend if they do not show up with to formal questioning? |
Court order compelling other party to attend Questioning |
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What is an undertaking? |
It is a binding promise (if made by a lawyer) to do or not to do something. Disciplinary action will be taken by Law Society if you breach an undertaking. |
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If you need time to make an undertaking what do you say? |
"under advisement" |
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What are four ways a legal assistant is involved in undertakings? |
1. Review transcript and compile list of undertakings 2. Assist in gathering information needed to comply with undertaking 3. Send reminded letters to client to bring certain documents 4. Track the other side and ensure they are keeping up with their undertakings. |
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How does obtaining evidence help a personal injury lawsuit? |
-helps lawyer assess strengths and weaknesses of case -helps lawyer strategize -helps win trial -anything that may establish guilt or innocence of the accused may be admitted as evidence |
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What two issues does evidence relate to? |
Liability and Quantum |
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What is liability in regards to evidence? |
Prove that the Defendant's conduct was wrongful and caused the Plaintiff's injuries (did they do it) |
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What is quantum in regards to evidence? |
Prove the amount of damages suffered as a result of the Defendant's liability (how you got to the amount claimed) |
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How do you locate witnesses? |
Mutual Friends Personal Property Search Court House |
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Quantum evidence usually includes... |
case law, hospital bills, diary entries and testimony from friends in terms of loss of enjoyment of life |
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How do you obtain confidential information? |
Have client sign several documents and leave the date blank (when you are ready to obtain information you may date it) |
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What is the best evidence rule? |
is a fundamental rule of evidence that provides, that the best evidence should always be used to prove facts and issues at trial |
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List best evidence from most important to least |
eyewitness testimony sworn statements documentary evidence hearsay |
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What are things an expert report must contain: |
statement of the substance of the evidence, signed by the expert statement will include: summary of expert's opinion, name and qualification of expert, information and assumptions on which expert's opinion is based a copy of the report on which the other party intends to rely signed by the expert a notice of intention to have the report entered as evidence
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Expert reports must be filed and served by who |
the party obtaining the report must serve it on the other parties |
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What is the limitation period to object to Notice of Intention? |
2 months from being served |
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If there are no objections to the Notice of Intention what happens? |
admitted as evidence to be used in trial |
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Along with objecting party's expert you may also.... |
call your own witness to rebuttal |
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Explain and name the third expert you can have in the battle. |
surrebuttal expert which means initial expert report may serve another report to address any new issues raised in the rebuttal expert report |
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An surrebuttal expert report has not been served, what happens? |
Not admissible in court |
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Courts may appoint their own experts because |
of application of other parties motion independent information is necessary |
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Who pays for a court expert? |
shared unless on party wishes to have a live testimony |
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The parties have 20 days to...
(HINT: COURT EXPERT) |
ask for leave to examine the court expert on the report |
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List five ways to locate an expert: |
other lawyers university specialists already being consulted Alberta Civil Trial Lawyers Association Technical Advisory Service for Attorneys |
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What are damages? |
monetary amount awarded by the Court that are payable by the Defendant to the Plaintiff |
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List the five basic principles of damages: |
1. Restitution 2. Punitive damages 3. Unsatisfactory result 4. Double recovery 5. Duty to mitigate |
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Explain Restitution.
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damages are based on restitution, which means the damages should put the Plaintiff in the same position that the Plaintiff would have been if the event had never occurred.
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Explain Punitive Damages. |
Both Defendant and Plaintiff can receive this damage that is intended to punish them for an outrageous conduct. This is awarded in addition to other damages. |
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Punitive damages are also known as...
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aggravated or exemplary damages
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Explain Damages May be Unsatisfactory. |
Damages may be inadequate compensation, which means you will then base damages on what would happen in the future if the incident had never occurred.
*wheel-chair bound |
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Explain Double Recovery. |
Arises in situations where the Plaintiff receives collateral benefits (apart from the lawsuit)
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What is a 'collateral benefit'? |
insurance benefits, EI, disability, or social assistance |
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How do you fix double recovery situations? |
Organization paying the benefits may have the right to bring subrogated claim against the Defendant in order to recover the benefits they paid to the Plaintiff
Courts may also deduct collateral benefits from the Plaintiff's damage award |
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Explain the fifth principal in Damages. |
Duty to Mitigate
Plaintiff is always under a duty to avoid aggravating his or her injuries and avoid increasing her damages |
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Give two examples of failure to mitigate injuries |
Not finding jobs when in a 'wrongful dismissal' case Refusal to undergo a safe operation that would reduce pain and suffering |
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List the two main types of damages. |
Special and General |
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Explain special damages. |
Capable of precise and exact calculation. Already arisen and have been quantified by the time of trial it will be referred to item-by-item in the Statement of Claim |
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What phrase allows Plaintiff to continue recover future special damages? |
"such special damages in an amount as may be proven at trial" |
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What is another way of saying special and general damages? |
Special: pecuniary damages General: non-pecuniary damages |
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Explain General Damages. |
Cannot be precisely calculated - only assessed or estimated, this usually refers to intangibles or future events |
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List 6 types of general damages. |
1. Loss of Future Income 2. Career Interruption 3. Cost of Future Care/Replacement of Household Services 4. Loss of Quality of Life/ Loss of Life Expectancy 5. Loss of Consortium 6. Pain and Suffering |
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Explain Loss of Future Income |
when Plaintiff cannot continue with pre-accident employment this claim is valid |
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What's another way of looking at Loss of Future Income? |
"income that the Plaintiff would have earned but for the injuries" |
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Loss of Future Income includes... |
Future salaries Future profits where business cannot function without the Plaintiff (running a business or essential) |
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Who determines Future Income? |
Experts, namely, economists and actuaries
help determine the present day lump sum that is equivalent to the income stream lost over the Plaintiff's expected liftetime |
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How do you determine Loss of Future Income Award? |
1. Estimate what the Plaintiff would have earned in the future (based on past earnings and projection in occupation) 2. Calculate the contingencies (uncertain future events) and deduct them 3. Deduct income Plaintiff is projected to make and whatever jobs are now possible for Plaintiff |
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What additional information do you take into account when young people are involved in Determining the Loss of Future Income Award?
Where do you get this information? |
Expressed goals and ambitions Early job experiences Early education achievements Intellectual ability
Family members, teachers & friends |
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What must lawyers provide when Determining the Loss of Future Income Award? |
normal age of retirement projected future income in Plaintiff's field Statistical likelihood of contingencies (maternity leave, job accidents in particular field, gender, etc) |
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When are you able to claim career interruption award? |
injuries interrupt the Plaintiff's career rather than prevent them from working again
i.e., football player |
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Explain career interruption |
when injuries interrupt rather than prevent career you may seek both lost income AND general damages
*pianist - future career opportunities - general |
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Explain Cost of Future Care/Replacement of Household Services. |
Can be claimed where Plaintiff may need personal care from a nurse or caregiver for rest of life as well as medical treatment
Also domestic help if unable to do household chores |
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For cost of Future Care/Replacement of Household Services you will need expert evidence about... |
projected cost actuarial evidence - lifespan (award for duration of estimated lifespan) medical evidence - outside assistance (nurse) |
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What is Loss of Quality of Life? |
enjoyment of life is significantly reduced |
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If you claim Loss of Enjoyment of life you will need evidence from family and friends regarding... |
hobbies interests how injury has affected the hobbies and interests |
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What type of experts are needed to estimate Loss of Life Expectancy/ Enjoyment claim? |
Actuarial evidence - lifespan Medical evidence - psychologists - depression |
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What is Loss of Consortium? |
This is awarded to injuries that have caused harm - physical and mental - to the Plaintiff's marriage
This will be past, present, and future pain and suffering |
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Pain and Suffering is governed by this rule what is it and what does it mean?
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Thin-skulled rule
The Defendant will be responsible for all the Plaintiff's injuries and pain and suffering even if other Plaintiffs would not have suffered to the same extent as the Plaintiff did |
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Explain the crumbling-skull rule. |
Defendant will have reduced liability if the Plaintiff's injuries were caused by a pre-existing medical condition and not be the Plaintiff's innate physical characteristics |
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Compare and contrast think skull v. Crumbling skull |
TS: innate characteristic - Defendant is fully responsible
CS: medical condition - Defendant not fully repsonsible |
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What is something the Court will look at if skull rules apply? |
damage award should reflect whether the pre-existing condition would have detrimentally affected the Plaintiff in the future, irrespective of the incident |
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List the two different types of tax that may affect a damage award: |
Income Tax Government Sales Tax |
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Where is income tax applicable in awards? |
Loss of Future Income and Tax on the Damage Award |
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Do you use gross or net earnings to determine income tax? |
Gross (without tax) as it is difficult to determine income tax in the future |
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Is Income Tax Payable on a Damage Award? |
Generally not but you pay income on any INVESTMENTS earned with your damage award |
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What is a gross-up and why do you need it? |
It increases your award for future expenses. You need this when paying for GST (Paying staff - future gst) |
