10. Trial

The trial is where you will be able to present your full case and will bring in evidence to support it. Your trial might be as short as an hour or as long as many days, depending on how complex the issues are and how many witnesses will give evidence.

10.1 Overview & Summary of Steps in a Trial

1. Opening statement of person who started the lawsuit: If you started the lawsuit you will start by giving an opening statement. In the opening statement you can tell the judge what the trial is about, what you are asking the court to do, the important facts you intend to establish during the trial and the specific orders you are seeking. Think of it as a short summary of what is to come, not a complete description of all the evidence that will be heard and how it will help your position in the lawsuit. This is not the time to give evidence. You will have an opportunity to do that.
2. Calling of witnesses by person who started the lawsuit: Your witnesses should wait outside the courtroom until they give their evidence, so they aren’t influenced by what others have said or argued. You can also ask the judge to order all witnesses to remain outside of the courtroom until it is their turn to testify and you can ask the judge to order that witnesses who have testified not discuss their evidence with the witnesses coming after them.You will call your witnesses one by one to give their evidence. If you are giving evidence, you will normally be the first witness (so that the opposite side can’t argue that you tailored your evidence to accord with what your earlier witnesses said). You are not allowed to make legal arguments when you are giving evidence as a witness. Your opportunity to tell the court all of the things you witnessed and experienced is when you are a witness. If you give evidence, the other side can cross-examine you once you are finished giving the evidence you want to give.When you are calling witnesses (other than yourself), you get their evidence by asking your witness questions. Their answers to your questions are their evidence. The process of you asking your witness questions, and them answering your questions is called “direct examination”. When you are done asking a witness questions, the other party gets to ask them questions. This is called “cross-examination”. Once the other side is done their cross-examination, you will usually have the option to ask questions if it is necessary to clarify the witness’ answers or address any issues that were raised in cross-examination that you didn’t previously ask them questions about. This is called the “re-examination”. Once that process is finished for your first witness, you will then call your next witness and the questioning process begins again.Remember that it is not the number of witnesses that important but the clarity of their evidence – you don’t need to call more than one witness to say the same thing – pick the best witness only – the one with the most knowledge and the clearest speaker.
3. Opening statement of other party: Once you have called all your witnesses and testified (if you wish to), the other side will give their opening statement. That is the most common order of things, but the process can sometimes vary. In some trials, both opening statements are done one after another before any witnesses are called.
4. Calling of witnesses by other party: They will then call their first witness and start with a direct examination of that witness. You will then be able to cross-examine that witness. The other party may re-examine the witness if necessary.
5. Rebuttal evidence: The party starting the lawsuit might be able to present evidence, through a witness, to address anything new that came up during the other side’s evidence. Rebuttal evidence is not a chance for the party who started the lawsuit to repeat the evidence they gave earlier. The procedure is the same as calling a witness.
6. Closing statement by person who started the lawsuit: Once the other party has finished calling witnesses and giving evidence, you will be asked to explain why the evidence that was presented in court supports your position in the lawsuit. This is called a closing statement or legal argument. This is when you can talk about the cases and laws that are relevant to the issues in your lawsuit.
7. Closing statement by other party: The other party will then present their closing statement and make an argument about the evidence and the law. If necessary, you may reply to their closing statement to respond to issues that have been raised for the first time in their argument.
8. Judge’s decision: After the closing arguments are completed, the judge may decide right away, or, if they need more time to think about the evidence or the law, you will get a written decision later.

10.2 Opening Statement

The opening statement gives you a chance to explain to the judge what the case is about and explain what order you are asking for, or opposing. The other party will also have a chance to give an opening statement. However, in all but the most complex cases, your opening statement should only be a few minutes long, so you want to be direct and to the point. In simple lawsuits, opening statements may be very brief or not be necessary at all.

An opening statement allows you to summarize what has happened in the case up to that point. For instance, you should inform the judge of any relevant interim orders in place. You’re basically providing a brief outline of where you have been and where you are going.  You will want to outline the basic framework of your case, leaving the details to be filled in by the witnesses and exhibits.

Your opening is not the time or place to present evidence or make arguments (although you may summarize each briefly). You should outline the main points of your position, describe the issues in the lawsuit, and briefly explain how you will prove or disprove each issue. Make sure that you summarize the facts necessary to prove the main points of your position in this lawsuit. Be sure your statement covers these points:

To help you prepare for trial you can fill out the Opening Statement Worksheet.

1. Inform the judge what has happened: Summarize any relevant pretrial orders including when they were made, and any issues that have been settled. If your case is very complicated it might be helpful to prepare a chronology of events. You might even present it as an exhibit through your testimony or that of another witness.
2. Inform the judge why you are here: Clearly state what orders you are seeking or objecting to.
3. Inform the judge what you will be doing: State what you believe are the important issues, how you intend to support your claims, the witnesses who you will be calling, and what key documents that you will be presenting to the court. Remember to keep it short. Briefly explain who your witnesses are and what they will be saying. For example, “I will be calling on Jon Smith, my family doctor, who will be speaking about my medical condition after the collision”.

To help you prepare for trial you can fill out the Opening Statement Worksheet.

10.3 Opening Statement Worksheet

Download the Worksheet

Fill in the blanks to help you prepare for your opening statement.

Decision you seek / oppose:

 

Chronology of your case:

 

Brief overview: (Provide a high level summary of the case)

 

Brief court overview: (e.g. when court documents were filed, any orders made, previous hearings or conferences attended and their outcomes or settlements you reached)

 

Theory of the case: Briefly state the reasons why you want what you want (e.g. you seek an order for compensation for wrongful dismissal. You plan to bring evidence of how you were given no notice and how there is no sufficient reason for your dismissal, how much you suffered due to the dismissal, and how long it took you to find comparable work.)

 

The Witness: Who and what they will say (in a sentence or two)

10.4 Witnesses

Calling witnesses

After you have presented your opening statement you will be asked to call your witnesses.

Your witnesses should be outside of the courtroom until it is time for them to give evidence, so other evidence and submissions doesn’t taint their evidence. After they are called to give their evidence, you should not discuss the case or their evidence with them. When you are ready to call a witness, tell the court clerk the name of the person you wish to call. The clerk will page the witness to come to the courtroom or ask you to go get them. The witness will then go into the witness box and swear an oath or affirm to tell the truth, and you can begin your direct examination. The Judge may ask questions of the witnesses every now and then. Those questions will normally be to clarify the evidence that the witness has given or to fill in gaps to achieve a better understanding. You cannot discuss a witness’ evidence with them during a break at court.

Questioning witnesses

Before your trial you will want to think about what questions to ask the witnesses so that they answer questions that help prove your case. There are 2 ways to question witnesses:

You must also be careful that your questions are questions rather than statements or arguments. Save your arguments for your closing statement, not during cross-examination.

1. Direct Examination (when you ask questions of a witness you have called); and
2. Cross Examination (when you ask questions of a witness the other side has called).

Direct examination

You will need to question the witnesses you call. This type of questioning is called direct examination. For a direct examination, you will need to ask “open-ended” questions (questions that allow for explanations but do not suggest answers). Open-ended questions usually begin with words like who, what, why, where, how, tell me about, or describe. Open-ended questions usually call for longer answers and do not restrict the witness to saying “yes” or “no”.

The opposite of an open-ended question is a “leading” question. Leading questions as the name indicates leads the witness to a particular answer. They are usually answered with “yes” or “no”. In general, you will usually not be permitted to ask leading questions of the witnesses you call. However, leading questions are allowed when you are asking your witnesses about introductory things that aren’t in dispute. For example, “Your name is John Doe?”, “You signed an Agreed Statement of Facts?”

Leading questions allow you to control what the witness talks about and often helps you get the witness to give a specific answer. This is why you are not allowed to ask your own witnesses leading questions.

Here are some examples to show you the difference:

Open Question: “can you describe your car for us?”

Leading Question: “you own a green car, don’t you?”

 

Open Question: “at what time did you get home?”

Leading Question: “you got home at ten o’clock, didn’t you?”

Questions for your witnesses

Do	Don’t
Start by asking background questions (What is your name? How do you know the parties? etc.). Let the witness finish answering before you ask the next question (do not interrupt).	Ask leading questions: questions with the answers in them (except on non-controversial issues). Ask long questions.
Do	Don’t
Keep your questions simple and clear. Organize your questions according to chronology or issue. Be precise with questions.	Ask complex or confusing questions. Asking 2 questions at the same time (it will be unclear which one the witness is answering). Be too broad or vague. Ask them to give their opinions – unless they are an expert witness.

Once you have finished examining your witness, the other party will be allowed to cross examine them. The other side is allowed to ask your witness leading questions. Be sure your witnesses know in advance, that this will happen.

Cross-examination

Once the other party has finished questioning a witness they have called, you can question that witness. Asking questions of the other party’s witness is called cross-examination. When cross-examining a witness, you are allowed to ask leading questions. Leading questions are questions that suggest the answer, such as “you have a blue car, don’t you?” or “you work at ABC Plumbing, right?”

During cross-examination, you are allowed to try to put the witness in a bad light. You can ask questions that challenge their credibility and the accuracy of their testimony. However, you cannot try to discredit the witness by challenging their credibility on issues that are not directly related to the issues in your lawsuit.

Cross-examination allows you to:

• Challenge or test the truthfulness or reliability of the other side’s witness and evidence.
• Get more details about their evidence.
• To get evidence that supports your case, you will want to get the witness to agree to the facts you present.
• To discredit the witness. This approach is used so the judge will minimize or disregard evidence or comments that do not support your case. You can do this by bringing into question their memory or their truthfulness. You can try to show that they may be biased or that they are inconsistent with their story.
• Cross-examination may help you to get useful information, bring out facts that the witness has not explained, and introduce facts that weaken the witness’ evidence or the other person’s position.
• Cross-examination may help you show whether that the other side’s witness is not truthful, sincere, and credible.

If you intend to challenge or contradict the evidence of a witness later in your case, you must confront them with the evidence you intend to later present so they have an opportunity to talk about it. Otherwise, you may not later be allowed to contradict them (this is called the Brown v. Dunn rule).

When you are cross-examining, you may wish to challenge a witness’ credibility or reliability. Make note of the following and you can bring any issues up in your closing argument (see Section 10.6: Closing Argument).

• The attitude and behaviour of the witness in the witness box;
• The ability and opportunity that the witness had to observe the things they say;
• The ability of the witness to give an accurate account of what they saw and heard;
• Whether the witness has any reason to be biased or prejudiced, or has an interest in the outcome of the case;
• Whether the witness attempted to answer questions in a forthright manner, or whether they were argumentative or evasive; and
• Whether the testimony given by the witness was impartial and objective or whether it was slanted. Cross examination of the other side’s witnesses

Do	Don’t
Ask leading questions. In your questioning, move from general to specific. Be clear and brief. Use simple language. Listen to the answers given and note important ones. Treat the witness with respect. Ask only one question at a time. Be precise with questions. Ask questions that may discredit their testimony.	Argue with the witness or try to tell your story. Repeat a question asked during direct examination that hurts your case. Ask them to give their opinions – unless they are an expert witness. Comment about their answer. You can do this during your closing argument.

Remember, your questions are not evidence. The witness’ answers are evidence.

Objecting to questions

The judge can disallow any question that is unnecessarily rude or is irrelevant to the issues in the lawsuit.

Either party can object to a question the other party is asking of the witness. They will need to explain to the judge why they are objecting. The judge will then decide whether to allow the question or not. A judge may also stop a question if it is unnecessarily harassing or embarrassing a witness.

Common reasons for objecting include:

• leading where only an open question is appropriate;
• multiple questions before allowing the witness to answer;
• opinion – asking someone to provide an opinion when they are not an expert;
• repetitive questions;
• vague or ambiguous questions;
• irrelevant;
• argumentative;
• speculative questions; and
• hearsay

If you want to object to a question that the other party is asking, simply stand up to let the judge know that you object. Be sure to explain why you object.

The purpose of an objection is to have the judge decide whether the question that is being asked of the witness can be admitted. You cannot object just because you do not like the answer the witness may give. Review Section 9.9: Objecting to Evidence to read more about what evidence is allowed.

Re-examining witnesses

Once your cross-examination is complete, the other party can re-examine his or her witness. This re-examination (sometimes called the redirect) is very restricted. The other party can only ask about new things that were not raised before, or that clarify the witness’ evidence in cross-examination.

In your redirect examination, because you are examining your own witness, you may only ask non-leading questions. Once re-examination is completed, that is the end of that witness’ testimony.

Witness introducing a document

If you want a document to become evidence, you must either have the other party agree to introduce the document without a witness or you must have a witness identify the document. “Identify the document” means that the witness is able to say that they made the document or had it in their possession, and confirm it accurately represents the truth. You should have the original and at least three copies of each document with you. It is best if you can produce the original document, which will be kept by the clerk, marked as an exhibit in the case and referred to by the witness. You must have at least three copies of each document so that you, the other party, and the judge, each have a copy.

Fill out the Witness Worksheet to better help you prepare if you plan to call witnesses.

Defendant’s options

Once the party bringing the lawsuit has finished calling their evidence, if you are the defendant you have some options.

At this time, you have three options.

Ask for a non-suit. Decide not to call witnesses or enter evidence. Move directly to closing arguments. Decide to call witnesses and enter evidence.

 

Give evidence

The third option is that you may proceed to give evidence and begin calling your witnesses.

Non-suit

It is the responsibility of the person bringing the lawsuit to prove on a balance of probabilities (at least 50%) all of the elements of their case. If you are confident the other side has not proven one or more elements of their case at all, you may choose not to call any witnesses or give evidence yourself, but ask for a non-suit.

You may ask the judge to decide whether or not the party who started the lawsuit has proven every necessary element of their case. This is called a motion for non-suit. If your motion for non-suit is granted, you will not have to call evidence or make a legal argument about your position in the lawsuit, and you will usually win the lawsuit. If your motion for non-suit is denied, you can still call your own evidence if you want.

Give no evidence

Second, you can decide to not call evidence, at which time the case will simply move to closing arguments. In closing arguments, you can argue that the other party has not provided sufficient evidence prove their case. This is a fairly risky thing to do, because if you are wrong, you will not have a chance to call evidence later. You should only choose to call no evidence if you are absolutely confident the other side has not proven their case sufficiently.

10.5 Witness Worksheet

Download the Worksheet

Fill in each column. For example:

• Witness: Dr. Reynolds.
• Points: 1. Your sleeping disorder, 2. How this affects your ability to focus during the day and your ability to drive, 3. It started to be reported after the collision.
• Documents you will use: the medical records dated March 2019 – January 2020.

Witness	Points you want them to make	Document you are putting to them

10.6 Closing Argument

The closing argument (also called closing statement) is the time when you will make your argument. You will describe what decisions you wish the judge to make and why they should make them, based on the evidence heard during the trial. If there is legislation or case law that supports your position, you should explain how the law applies to this lawsuit and the evidence that was given during the trial.

The time for giving evidence is over and you may not present any further evidence. In making your closing arguments, you may only refer to evidence that has already been given during this trial. You want to show that the evidence supports your position and the law supports the decision you seek.

Here are the steps you want to take for your closing:

• Summarize the law: Very briefly state the law you are relying on and any case law you are using to support your claim. Highlight the points you are trying to prove. If you are going to rely on any cases or statutes, you must have copies available for the other party and the judge.
• Summarize the evidence and how it relates to the law: Refer to the evidence presented to the court such as witness evidence or documents that show the points you are trying to prove.
• Go over any issues with a witness’ credibility or reliability: Highlight the ways that the witnesses that helped your ase were credible and reliable, and the ways a witness who did not help your case was not reliable or reliable. See Section 10.4: Witnesses for more on what to consider regarding credibility and reliability.
• Address any arguments by the other party: If you can show how their points do not apply to you, do so.
• Conclude: Restate the decision you seek. When the evidence or the law is complicated, you can ask the judge if you can give a written summary of your closing arguments.

It is sometimes possible to submit your closing statement in written form. Ask the judge in advance if you can submit your written closing statement to them so they can follow along as you present it. A judge does not need to accept your closing statement in writing, so ask to see if they will. If you are submitting a closing statement in writing, make sure all key elements of your legal argument are included.

Fill in the Closing Statement Worksheet before the trial to help you prepare, but be sure to continue to fill it in with more detail during your trial.

10.7 Closing Argument Worksheet

Download the Worksheet

Fill out this worksheet to help prepare for giving a closing statement. You might need to leave blanks to be filled out during the trial as evidence is brought forward.

Orders you seek / oppose:

 

Theory of the Case: Briefly state the reasons why you want what you want.

 

Relevant Laws:

 

 

Supporting Case law:

 

Related to Facts (supported by evidence presented at trial):

 

Additional Comments (address arguments made by other party):

10.8 Decision / Order / Judgement

After a hearing or a trial, the judge will state their decision in writing or orally. The results of their decision will be called a judgement or order and, in most cases, will be written down. A court judgment or order is created (usually drafted by the successful party) that describes what the judge has decided. Orders apply to both parties for a defined or undefined period of time. 

If all the parties to a case agree to resolve (settle) all or part of a case in a certain way, they can also tell the court that they agree to an order or judgment. If the judge agrees, they can issue a “consent order” showing that everyone has agreed to that judgment.

It is important to know that just because there is a judgment from the Court, this does not mean that it will always be followed. You may need to take actions to enforce the judgment.