13. 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 necessary witnesses will give evidence.

13.1 Overview & Summary of Steps in a Trial

Summary of steps in a trial

1. Opening statement of person who started the claim: If you started the claim, you will start by giving an opening statement. In the opening statement, you can tell the judge the important facts you intend to establish during the trial and the 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 case. 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 claim: 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 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 do not make your legal arguments when you are giving evidence as a witness. Your opportunity to tell the court of the things you witnessed and experienced is when you are a witness. If you give evidence, the other side may cross examine you once you are finished giving the relevant and material evidence you want to give. When you are calling witnesses (other than yourself – yours will not be questions and answers, but rather a narration), 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 the “direct examination”. When you are done asking a witness questions, the other party gets to ask them questions. This is called the “cross-examination”. Once the other side is done their cross-examination, you have the option to ask questions if this 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.
3. Opening statement of other party: Once you have called all your witnesses and you have 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 for example, in the discretion of the judge, both opening statements are done one after another, before any witnesses are called.
4. Calling of witnesses by other party: The other party 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 who initiated the case might be able to present evidence to address anything new that came up during the other side’s evidence. This is “rebuttal evidence” and is not a chance for the party who started the case to repeat the evidence they gave earlier. The procedure is the same regarding calling witnesses.
6. Closing statement by person who started the claim: 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. 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 claim.
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 new 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. This is also called the judgement.

13.2 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 (this is often clearer if you hand up to the judge a draft of the order / decision you wish them to grant). 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 cases, opening statements may be very brief (on occasion 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 interim orders in place. You are basically providing a map of where you have been and where you want to go. 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 give evidence or make arguments. 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 include the facts necessary to establish the main points of your position in this lawsuit.

What to cover?

1. Inform the Judge what has happened: Summarize any relevant interim 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 and present a written chronology of events.
2. Inform the Judge why you are here: Clearly state what orders you are seeking or objecting to (and, as noted, perhaps provide a draft order).
3. Inform the Judge what you will be doing: State what you believe are the most 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 you expect they will be saying.

To help you prepare fill out the Opening Statement Worksheet

13.3 Opening Statement Worksheet

Download the Worksheet

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

Decision you seek / oppose (draft order):

___________________________________________________________________________

___________________________________________________________________________

Chronology of your case:

• Brief overview: (e.g. date of marriage and separation, number of children)

___________________________________________________________________________

___________________________________________________________________________

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

___________________________________________________________________________

___________________________________________________________________________

Theory of the case: Briefly state the reasons for your claim and why you want what you want: (e.g. you seek an order for spousal support and child maintenance because the relationship breakdown has put you in a financial disadvantage, you plan to bring evidence of how your earning capacity has been negatively affected and how you are unable to support the children in the family home)

___________________________________________________________________________

___________________________________________________________________________

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

___________________________________________________________________________

___________________________________________________________________________

13.4 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 make 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. 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:

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).

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.

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 and do not suggest the answer i.e. are not leading.) 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 a “yes” or “no”. Leading questions allow you to control what the witness talks about and often helps you get the witness to give a specific answer. 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?”.

Here are some examples to show you the difference:

• Open-ended Question: “can you describe your car for us?”
• Leading Question: “you own a green car, don’t you?”
• Opened-end Question: “at what time did you get home?”
• Leading Question: “you got home at ten o’clock, didn’t you?”

Questions for your witnesses:

The Dos	The Don’ts
Start by asking background questions (e.g. 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). Keep your questions simple and clear. Organize your questions according to chronology or issue. Be precise with questions.	Ask leading questions: questions with answers in them (except on non-controversial issues). Ask long 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, meaning the other party is allowed to ask them leading questions. Be sure your witnesses know in advance that this will/may 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 never taken the children to swim lessons, right?” or “you agree that you made $78,000 in income last year?”

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 the case.

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 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 to show 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 present so they have an opportunity to talk about it. Otherwise, you may not 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 13.6: 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-examining the other side’s witness

The Dos	The Don’ts
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 hurt 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’s answers are evidence.

Objecting to questions

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

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

If you want to object to a particular 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 12.8: Objecting to Evidence to learn more of 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 re-examining party can only ask about new things that were raised in your cross-examination, not things that were not raised before. They can only ask questions 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.

13.5 Witness Worksheet

Download the Worksheet

If you plan to call witnesses, you should fill out the witness worksheet to better help you prepare.

Fill in each column. For example,

• Witness: Your child’s daycare worker.
• Points: 1. You pick up and drop off your child at daycare, 2. You are the principal contact for the daycare.
• Documents you will use: the drop off and pick up records kept by the daycare.

Witness	Points you want them to get across	Document you are putting to them

 

13.6 Closing Statement 

The closing argument (also called closing statement) is 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.

The closing argument is not another chance to give evidence. You may only refer to evidence that has already been given during this trial. You cannot refer to any documents or talk about anything not already seen or heard as evidence.

You want to show that the evidence supports your position, and the law supports the order you seek. Here are the steps you want to take for your closing argument:

• Summarize the law: Very briefly state the law you are relying on and any case law you are using to support your claim (unless it is obviously elementary). If you are going to rely on any cases or statutes, you must have copies available for the other party and the judge. Highlight in colour and point out the sections of the case law that support your claims.
• Summarize your evidence and how it relates to the law: Outline the points you are trying to prove. Refer to the evidence you presented to the court such as witness statements or documents that show the points you are trying to prove.
• Go over any issues with a witness’ credibility or reliability: Summarize the ways that the witnesses that helped your case were credible and reliable, and the ways a witness who did not help your case was not credible or reliable. See Section 13.4: 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.

13.7 Closing Statement 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 (draft copy)

_____________________________________________________________________________________

_____________________________________________________________________________________

Theory of the case: Briefly state the reasons why you want what you want

_____________________________________________________________________________________

_____________________________________________________________________________________

Relevant Statutory laws:

_____________________________________________________________________________________

_____________________________________________________________________________________

Supporting Case Law:

_____________________________________________________________________________________

_____________________________________________________________________________________

Relevant Facts (supported by evidence presented at trial):

_____________________________________________________________________________________

______________________________________________________________________________________

Additional Comments (address arguments made by other party or the credibility of witnesses):

_____________________________________________________________________________________

_____________________________________________________________________________________

13.8 Decision

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 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 court order, this does not mean that it will always be followed. You may need to take actions to enforce the order.