Preliminary Matters in Civil Litigation 

The first step in an civil litigation proceeding is a determination whether the facts, as relayed by the client in the case, constitute a cause of action which may result in a favorable judgement. This effectively means that the so called “trier of fact” has found that the facts, as presented by the plaintiff are correct. There are many civil claims which do not proceed due to a lack of evidence. Where contracts were not properly drawn up and/or signed, or where too much of the case relies on verbal testimony where documents should have been present, it may not be wise to proceed with the matter.

Types of evidence in civil litigation

In a civil case the burden of proof rests with the plaintiff. This means that the moving party is obliged to show on a balance of probabilities that more likely than not, their version of events is correct and should result in a judgement in their favour. Once a plaintiff establishes that liability existed, they also bear the onus of showing how much damages flowed from it. The plaintiff and often the defendant as well, primarily present four main types of evidence:

  1. Testimonial evidence. The most common type of evidence is verbal. What the plaintiff and defendant did, saw and remembered, along with any witnesses. Because of the length of type that usually passes between the start of the case and any possible trial, prudent lawyers preserve the evidence by way of a signed statement or affidavit of all parties involved. This allows the lawyer and the said parties to refresh their memories as needed.
  2.  Documentary Evidence. This encompasses any documents, diagram, photograph, video, audio recording or electronic database which contains relevant information. Documentary evidence tends to be very reliable but comes with a catch. In order for it to be admitted as evidence, the party producing it must testify as to how it was obtained and preserved for the trial.
  3. Physical Evidence. This includes any possible physical evidence, such as the automobiles involved in any motor vehicle case.
  4. Expert Evidence. This consists of the reports and testimony of experts asked to comment on any aspect of the case in which they specialize. Exert evidence is heavily regulated. What constitutes an expert, what the limits of that expertise are, how relevant is that expertise to the case in front of the court have all been litigated in prior cases. Due to the high cost of calling experts to the stand, it is wise to ensure that their testimony will actually have probative value in the case.

Consideration of Whether and How to Proceed

Once a determination has been made that there is a cause of action which may result in a favourable outcome, the next determination will be one of the risks involved. Many civil cases take twists and turns as the matter proceeds when new evidence is discovered, presented or existing evidence is refuted or excluded from the action. Both parties would be aware that if they win they will have a portion of their legal fees paid by the losing party. However, if they lose, not only will they have to pay their own lawyer in full, they will be liable for a portion of the opposing parties legal fees.

Cost and Delay

Any potential plaintiff also has to consider any up front cost of starting litigation, as well as the delay it might take to bring the case to a conclusion. While there has been some attempts to control the length of time that cases take through Civil case management and the simplified procedure, most cases still take years to resolve. Sometimes these new rules actually slow thing down by allowing parties to delay the process by deliberately using these additional steps in bad faith.

Courts encourage lawyers and their clients to follow the so-called “principle of proporationality”. The time and cost devoted to each step of the proceeding ought to be weighed against what is actually at stake for the plaintiff and/or defendant. Straightforward and low damages cases should not take as long or cost as much as large, complex cases. While this has always been a rule of thumb, it has now been incorporated into the Rules of Civil Procedure itself under Rule 1.04(1.1).

Other Considerations

Civil litigation often involves parties who know each other, or otherwise had some sort of trust relationship prior to the commencement of proceedings. Engaging in civil litigation almost certainly causes each side to look at the other as the opposition and eventually the enemy. There is a lot of stress and emotion that go into such cases and sometimes, particularly with low damages claims, one must consider if the time, cost, and stress are all worth it.

If you believe that you have a civil litigation claim, or have questions about the procedure, call Empel Law Professional Corporation at 416-500-1937 to book a consultation today.

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Arkadiusz J. Empel urodził się w Katowicah. Jako dziecko emigrował do Kanady, razem z rodziną, lecz wrócił jako student aby ukończyć Pracę Magisterską w Krakowie. Przez swoją pracę z polonią w okolicy Toronto utrzymał władność w swojim języku ojczystym. Jeżeli Państwo życzy się skonsultować prosto z adwokatem Polski, proszę przedzwonić na numer 416-500-1937.