Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
30 Cards in this Set
- Front
- Back
|
What is questioning |
Questioning is a pre- trial cross-examination under oath of the parties by the opposite lawyers, in the presence of a court reporter. |
|
|
Pre-trial: |
Questioning happens long before the lawsuit reaches trial. Many lawsuits will settle after this proceeding and never reach trial. |
|
|
Cross-examination: |
A cross-examination refers to one party being questioned by the lawyer for the other party (or by the other party himself or herself personally, if not represented by a lawyer |
|
|
Under oath: This means that _____. If a party lies under oath, whether in Questioning or in a trial, her or she has committed _____. |
the party being examined has sworn on the Bible or has solemnly affirmed that he or she will tell the truth in the proceeding the offence of perjury. Perjury is punishable under Canada’s criminal laws. |
|
|
Only _____ participate in Questioning. If one of the parties is a corporation, then ______ may also be present and will be _____. Witnesses are ______. |
the parties to the lawsuit—usually the Plaintiff, Defendant, and third parties— a representative of the corporation and/or an employee of that corporation examined on behalf of the corporation not present and cannot be questioned at this proceeding
|
|
|
A court reporter will _____ during the proceeding. The court reporter records this information in shorthand and will then prepare ______. There are many court reporting agencies, and law firms and lawyers often have favourite agencies that they like to hire. |
record verbatim (i.e., word-for-word) every question asked and every answer given a transcript, or written record, of the questions and answers |
|
|
Once Questioning is over, the legal assistant will order _____. The fee for the transcript is usually based on ____. This is a _____ that will be charged back to the client. |
a copy of the transcripts for his or her lawyer a per page charge for each page of the transcript disbursement paid by the law firm |
|
|
The scope of questions permitted at Questioning is very broad. In fact, a wider scope of questions is allowed in Questioning than at trial. The basic rule governing permissible questions is that ______. |
anything that is relevant can be asked and must be answered, even if the answers hurt the party’s case. |
|
|
However, there are some restrictions on what can be asked. In particular, questions cannot be asked that: 5 |
Are privileged Are irrelevant Are questions of law not of fact Are oppressive or abusive Ask the party to make a written response or to draw a diagram in response, as Questioning is a verbal question-and-answer session. |
|
|
In many cases, the lawyers will tell the court reporter that this discussion is off the record, which means that _____. When the lawyers are ready to resume Questioning, they will tell the court reporter that _____. At this point, the court reporter will ______again. |
the court reporter will not record the discussion they are back on the record start recording the proceedings
|
|
|
Sometimes the lawyers will not be able to agree on whether or not a question should be answered. Whether the lawyers continue with Questioning depends on ______. In some cases, the lawyers may decide to ______. In other cases, the lawyers may immediately ______. |
how important the question is and how heated the lawyers’ tempers have become continue with the rest of Questioning and will later make an interlocutory application to court and ask the judge to resolve the outstanding dispute end Questioning and will not continue Questioning until the court has resolved their dispute.
|
|
|
Questioning accomplishes several purposes. |
First, Questioning lets the lawyer question the other party (or parties) in detail about the facts. This allows the lawyer to: 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. Second, Questioning lets the lawyer assess how his or her own client handles being cross- examined by the other side and how well the client is likely to present himself or herself at trial. It is one thing for the client to be able to tell his or her story to his or her own sympathetic lawyer in the privacy and comfort of the lawyer’s office. It is quite another thing for the client to be able to explain his or her story under grueling cross- examination by the opposing lawyer. Third, because Questioning is under oath, the answers given are binding on the party giving them and can become part of the evidence at the subsequent trial. The transcript can also be used at trial to challenge the other party if his or her answers at trial are different from the answers given at Questioning. This allows the lawyer to raise questions about the other party’s credibility. Finally, Questioning helps to promote settlement. It lets the lawyer assess the strengths and weaknesses of: His or her own case, as revealed by the other lawyer’s cross-examination of the lawyer’s client; and The other side’s case, as revealed by the lawyer’s own cross-examination of the other side. |
|
|
Questioning takes place _____. Each party has ________. |
after the Affidavit of Records has been filed and served one opportunity to cross-examine and be cross-examined by each of the other parties to the lawsuit |
|
|
let’s look at a situation where the initial parties to the lawsuit are the Plaintiff and Defendant. They will conduct Questioning once ______. However, as you will remember, the Defendant _____ after serving the defence to file a Third Party Notice. If the Defendant files and serves a Third Party Notice after the initial Questioning is over, ______. |
the Defendant has filed and served the Statement of Defence has six months another Questioning must be held to let the Plaintiff and Defendant cross-examine the third party, and vice versa
|
|
|
Questioning can take place in a morning or afternoon. It can last for an entire day, or even for several days, depending on how complicated the lawsuit is and how many parties are involved. Questioning can also be held on one day, and then, if not finished by the end of that day, ______, weeks or even months later, depending on the lawyers' schedules. |
be adjourned for completion to a later date |
|
|
There are several options for where to hold Questioning. Usually, Questioning is held at the offices of the law firm organizing Questioning. They can be held in: 4 |
Law firm's boardroom or meeting room Law firm's library Lawyer's office Questioning can also be held at the offices of one of the other law firms involved in the lawsuit. As well, many court reporting agencies have their own boardrooms set up for Questioning, and Questioning can be held there. |
|
|
In most cases, arranging Questioning can be done informally through a straightforward process. ____will usually start the process by _____. |
The Plaintiff’s lawyer 1. having his or her legal assistant phone the other lawyers’ legal assistants or legal secretaries to determine a date on which all lawyers will be available for Questioning. 2. The legal assistant will then ________. 3. The lawyers will confirm _____, and will undertake, or promise, to _____.
2. call the court reporting agency that will be providing the court reporter and reserve a time for Questioning 3. the Questioning date with their clients produce their clients at Questioning on the set day 4. When the Questioning day arrives, . all the parties and their lawyers will appear, and Questioning can begin |
|
|
Where the informal process has failed, it is necessary to use a ______ to compel the other parties to attend Questioning. Failure to attend a formally scheduled Questioning can result in _____. Failure to attend can also result in _____. |
formal process contempt of court proceedings being brought against the party that does not attend the Court striking out, or cancelling, the non-attending party’s pleadings.
|
|
|
The formal process to set up Questioning is more complicated and requires more documents than the informal process. To begin this process, the legal assistant will, _____and will _____. The legal assistant will then 2. ______. 3. Once the date has been established, the legal assistant will then ______. |
1. in consultation with his or her lawyer, select a date for Questioning confirm this date with the client 2. reserve the date with the court reporting agency
3. prepare documents that formally compel the other parties to attend Questioning |
|
|
Once the date has been established, the legal assistant will then prepare documents that formally compel the other parties to attend Questioning. These documents may include: 2 |
Appointment of corporate representative Appointment for Questioning (form 29) |
|
|
Appointment of Corporate Representative: If the other party being examined is a corporation, the corporation must choose a _____. The choice of representative is completely up to the corporation, provided, of course, that the representative selected has _____ and can _____. If the representative selected knows nothing about the case, the examining party can _______. Although no official documents are required, the legal assistant may be required to _____. |
representative—an individual to speak for the company at Questioning knowledge of the dispute between the parties. answer questions about the lawsuit adjourn Questioning and make an interlocutory application for the court’s assistance confirm who this individual is
|
|
|
Appointment for Questioning (form 29): This is a ____. It also warns the other parties of the _____ and sets out _____. This document must be served on the party at least ______. |
formal document that notifies the other parties when and where Questioning will be held consequences of missing the scheduled Questioning what allowances (meal, accommodation, transportation) are required to be paid to the individual being questioned 20 days before the appointment date |
|
|
The Appointment for Questioning and/or Appointment of Corporate Representative must be served together with a _____. Under the Rules of Court, if a party wants to formally compel another party to attend Questioning, he or she must _____. As you will see in subsequent modules, this allowance must also be paid: 2 |
sum of money known as an allowance pay an allowance to the other party To formally compel a witness to attend a trial To juror if the trial is held before a civil jury
|
|
|
Schedule B, Division 3, of the Alberta Rules of Court sets out what this allowance includes: 4 |
Travel expenses, which can be the actual train, airplane, or bus fare paid, or a charge per kilometre travelled if the other party travelled to Questioning by private car; A per diem (per day) charge of $50.00 for the other party’s time and trouble; Accommodation, where the other party does not live within a reasonable commuting distance from the place of Questioning; and Meals purchased by the other party during Questioning. |
|
|
The legal assistant, in consultation with his or her lawyer, will make a reasonable estimate of the allowance required and will ______. The cheque can be drawn either on ____or on _____. If the money comes from the latter, it is considered a ______. |
prepare a cheque for this amount the lawyer’s trust account (if the client has enough money held in trust to cover it) the lawyer’s general account disbursement and will eventually be billed back to the client.
|
|
|
The Rules state that the lawyer who is served with the Appointment for Questioning and/or Appointment of Corporate Representative and with the allowance must ______and must ______. The allowance cannot be used by the lawyer towards _____. If the client fails to appear at Questioning, the lawyer must ____. |
inform his or her client about Questioning use the allowance for the client’s travel, meals, and accommodation the client’s outstanding legal bill reimburse the other law firm for the amount of this allowance
|
|
|
If a party to the lawsuit does not appear after this formal process has been followed, the party that arranged Questioning can _______. |
make an application to court for an order compelling the other party to attend Questioning. |
|
|
Undertakings |
An undertaking is a promise to do or not to do something. If made by a lawyer, it is a binding promise on the lawyer, and he or she can be disciplined by the Law Society if he or she breaches an undertaking. |
|
|
Undertakings are often given _____. |
during Questioning when a party is asked a question for which he or she does not have an immediate answer |
|
|
In some cases, the other side may want the client to give an undertaking that is not proper. It is the job of the client’s lawyer to _______. |
object to his or her client giving an improper undertaking |
