CHAPTER 1

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Advocacy and the Litigation Process

Introduction

• Trials result from disagreement between plaintiff and defendant as to the facts of a case

• Judge: makes findings of fact, applies relevant law, comes to a decision

• Example of facts in a civil dispute: Kitchen Renovation Case

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The Kitchen Renovation Case• Tina Fey and her husband hired Baldwin Brothers

Construction to make some minor renovations to their kitchen for a total contract price of $7,500

• The work is now completed but the Feys and the Baldwins have a disagreement about payment for the installation of three pot lights• Tina claims that the contract price included the installation of all

necessary lights in the kitchen• Baldwin Brothers Construction claims that the contract required

them to install five pot lights only, and that the three additional pot lights that were requested were extra and to be paid for separately

• Tina has paid the original contract price but refuses to pay any more

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The Trial

• The parties cannot resolve this disagreement, so Baldwin Brothers Construction has started a Small Claims Court action claiming $750 for the cost of supplying and installing the three disputed pot lights

• The judge must decide whether to grant judgment to the plaintiff for the $750• First the judge must determine what exactly the parties agreed to

based on the evidence presented by the parties in court• The parties did not have a written contract. Tina Fey and Alec

Baldwin were the only people present when the oral contract was made, and they each have a very different understanding of what they agreed to

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The Decision• The judge listens to each party’s retelling of the events

and chooses which version to believe• Parties’ stories can differ if one of them is lying, but more often

stories differ because parties remember the events differently• The judge will believe the story that makes more sense• It is the advocate’s role to present the client’s story in the most

persuasive way• After determining the facts of the case, the judge will

arrive at a decision by applying the relevant law to the facts

• It is the role of the advocate to advise the judge of the applicable law and suggest how that law should be applied to the facts

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Advocacy and the Litigation Process

• Advocacy: the process of presenting a case or defence at a trial or hearing before a civil court, a criminal court, or an administrative tribunal

• Advocate: a person who pleads the cause of another before a court or tribunal • Paralegals may act as advocates at tribunals and lower-level

courts

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Advocacy and the Litigation Process (cont’d)• Substantive law defines legal rights and obligations

• contract law• tort law• family law• real estate law • criminal law

• Procedural law deals with the way in which a dispute first comes to a court or tribunal and is then brought forward to a final resolution at a trial or hearing

• Law of evidence: deals with how the facts (as required by substantive law) are to be proved

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