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The experience of going to small claims court can be an intimidating process if you are appearing on your own, without a lawyer. People who go to court without representation are "self-represented litigants." If you are self-represented, and you're worried about what happens before and during a trial, this video will help. This video will give you, the self-represented litigant, some basic information about small claims court cases. The video will cover topics including the settlement conference and the basic procedure at trial. The video will also suggest some tips that may help you to make your case in the best manner before a judge.
This video does not cover everything you need to know. Depending on your case, you may need to get information about how to file your claim, how to bring motions, how to collect or pay the money that is owed to you or the other party after trial, and other issues.
The Ministry of the Attorney General has developed excellent written guides that will help you in more detail. You can ask for these self-help guides at the small claims court. You can also download them for free from their website: www.attorneygeneral.jus.gov.on.ca. Click on the "Small Claims Court" link on the left side of that screen.
You should know that this video is not legal advice. If you think you need legal advice, you should consult with a lawyer.
Preparation and Settlement Conference
Assuming both parties have filed all the necessary plaintiff and defence forms with the court, the court will schedule a settlement conference. A settlement conference is an informal meeting that takes place between the parties and a judge or deputy judge. What is said and what happens during the settlement conference is confidential. This means that whatever matters are discussed will not be disclosed at trial. In fact, you will present your case before a DIFFERENT judge if your case goes to trial.
An objective of the settlement conference is to reach an agreement that is practical and fair to both parties. Look at the settlement conference as a chance for you to save time and money, since you may be able to settle your dispute early, and avoid going to trial.
To make the most of the settlement conference, you must be prepared. If you are NOT prepared, the judge can award "legal costs" against you and you will be forced to pay some of the other party's expenses. So you should bring all documents to the pre-trial conference to support your claims: these may include receipts, estimates, contracts, letters, or any other relevant documents. A relevant document at trial is a document that will help to convince the judge that the story you are telling is true.
The settlement conference judge may suggest to you that it is in the best interest of everyone to settle the case before the trial. Settling the case before the trial means that you and the other party will make compromises in order to reach an agreement. In exchange for those compromises, the case will be dropped. While you may feel very strongly that you should not have to make any compromises because you are clearly in the right, you should seriously consider any advice to settle given by the judge. You might not receive as much money as you feel you are entitled to if you settle, but remember that you will very rarely achieve your best-case scenario at trial. Going to trial is risky. If you win, you may end up getting much less than you had hoped. Or, you could even lose. Even if you win at trial, it is your responsibility to collect the money owed to you - the court does not give you the money you win, nor will the court collect it for you. You must understand that you will end up spending money and time - often a lot of it - if you choose to continue to trial. Settling early may be a way for you to avoid those unnecessary expenses.
Feel free to ask questions of the settlement conference judge. Try to make a list beforehand of the questions that you want to ask in order to have a better understanding of what you can expect at trial. For example, you may ask what you can realistically expect to recover or have to pay.
Make sure you listen carefully to the other side during the settlement conference. Listening leads to understanding. And understanding the other side's case will make it easier for you and the other party to agree on a fair settlement. Try to determine what the other party would like to obtain: Is it money? A reference letter? A privilege of some kind?
Once again, you must be prepared, so you must bring ALL documents that relate to your case to the pre-trial conference. The documents will allow the judge to give you and the other party the best recommendations possible. This will save everyone time and money.
If the parties do not reach an agreement during the settlement conference, you will go to trial. The court will notify you of your court date, court room number and time by mail. On the day of your trial, arrive early and find your court room. Yours will not be the only case scheduled for that day - find your name on the list and wait to be called in by the clerk. The clerk will open the court at the designated time, and everyone on the list will enter and check in with the clerk. Your case might be first or last - it is up to the clerk to schedule them. You must wait in the public seating at the back of the court room until your case is called before the judge.
Once all of the cases present have registered with the clerk, the judge will enter the court room. You must stand whenever the judge enters or leaves the room.
When your case is called before the judge, remember that the plaintiff sits on the right side of the courtroom facing the judge and the defendant sits to the left. The judge sits behind a table or desk. You should only present your case to the judge, not the other party, as it is the judge who will ultimately rule in the case. A judge does not favour any party, but instead listens to the arguments of both parties, occasionally asks questions, and issues a ruling in the case. You should address the judge as "Your Honour."
The trial starts with opening statements made first by the plaintiff and then by the defendant. The opening statement is a short summary of the case, including the events that brought you to court. The opening statement should then list the issues in the case that need to be resolved, and should briefly state the evidence on which you plan to rely.
If you can, you must stand up when you are speaking to the judge.
Your goal at the trial is to present information, which is called "evidence." This helps convince the judge that your argument is correct. You should also explain to the judge why your version of the story is more likely to be true than the other party's version. The evidence can be something stated in court, or it can be a document or an object, as long as the evidence is relevant to the case.
You MUST follow the Small Claims Court Rules when it comes to evidence - you must give notice to the other side ahead of the trial, that you are planning to introduce documents or other evidence. This is called "serving" the other party. If you do not understand these rules, be sure to ask for assistance well before the date of the trial, because you want to be sure that you are able to present all the important information at the trial.
Remember, having a witness speak at the trial, or having possession of documents that prove your point - for example, receipts, estimates, pictures, letters, window frames - will always be better than just telling the judge about what you saw, read, or heard. You should bring all witnesses and documents that help prove your case.
There is some evidence that cannot be brought before the judge. For example, you will not be able to ask the other party to talk about conversations that he or she has had with his or her lawyer; this evidence is protected. As well, you will not be able to discuss your settlement conference. If you are unsure whether a portion of the evidence that you want to present is not allowed, you may wish to speak to a lawyer. A judge may also choose to exclude any evidence if it is simply repeating other evidence that has already been presented.
PRESENTING YOUR CASE
The three general steps to presenting your case include (1) describing what the other person was supposed to do and why they were supposed to do those things in the first place. (2) showing that the other person did not do those things properly, or at all. (3) showing what damages or losses you suffered as a result of the person not fulfilling their responsibility to you.
For example, if you gave a painter a deposit to paint your windows, but they never painted the windows and have refused to give the deposit back, you would present your case in a way something like this:
(1) Describing what the other person was supposed to do and why they were supposed to do those things in the first place. You would tell the judge that the painter was supposed to paint the windows because you asked them to do so.
(2) Showing that the other person did not do those things properly, or at all. You would tell the judge that the painter has never painted the windows.
(3) Showing what damages or losses you suffered as a result of the person not fulfilling their responsibility to you. You would tell the judge that you have the painter a deposit. Now would be a great time to give the judge a copy of a contract you signed with the painter. Also, if you got a receipt from the painter for the deposit, now would be the time to show it to the judge.
A witness can be anyone who gives evidence in the case. A witness does not have to be someone who "saw" the incident. For example, a witness could be an innocent bystander, a family member who has knowledge of the event, or even a person very knowledgeable in a field relevant to the case (such as other contractors, in this case); as well, both parties to a case will generally be witnesses.
If you or any witness gives evidence, you must do so from the witness box. Also, a witness must give an oath or affirmation that he or she is telling the truth.
If you need someone to appear as a witness, you can serve that person with a summons to witness, or subpoena. A summons to witness is a document that will require the witness to show up in court on the trial day to present his or her evidence. You should speak to the court information desk to obtain the proper summons to witness documents.
If you are going to be your own witness, you should think about how you want to tell your story. You should always start from the beginning, and be sure to stay as close as possible to the issues at trial. Tell the facts and your understanding of what happened. Do not make personal remarks and remember to only speak to the judge, not to the other people in the room.
In order to get information from a witness, the witness is "examined" or questioned. This is usually done orally. There are three stages to the questions: the examination-in-chief followed by cross-examination and then re-examination.
Examination-in-Chief is the term used to describe when the plaintiff or defendant examines their own witness. You should "examine" or question your witness in a way that allows the witness to tell his or her story in the most natural and understandable form. The witness's story will become part of the evidence for the case.
You need to prepare your witness before hand, so that he or she will know what to expect at trial. This is because you do not want the witness to talk about things that are not important for your case. You should ask short and precise questions. You should avoid asking "leading questions". A leading question is one that suggests its own answer. A leading question suggests the answer either directly, or by inviting the witness to agree or disagree with a statement or document.
Cross-examination is the term used to describe questioning of the other party's witnesses. You may do this to attempt to get these witnesses to admit to things that will help your case. You may also want to do this in order to show that the person is not someone who should be believed.
When you are questioning the other side's witness in cross-examination, you can ask leading questions, which you could not ask of your own witness. When cross-examining, you are allowed instead to suggest statements and ask questions that force the witness either to agree or disagree with things you say. Try to ask questions where the only possible answers are either "yes" or "no". In general, questions should be short, clear and definite so that the witness understands exactly what you are saying. It can be tricky to know how to cross-examine a witness.
Sometimes you may examine a witness for a second time, but you may only choose to re-examine on issues that have been brought up during the cross-examination. For additional information concerning the re-examination, you should consult the court information desk.
The Judge's Role and Closing Arguments
Throughout the whole trial, the judge will keep control over the kinds of questions that are asked: you should make sure that your questions are related to the case, or else the judge may disallow your question. The judge must understand the evidence, and the judge may even ask questions. If the judge asks a question, it is perhaps because something you have said or tried to show is not clear to the judge. If a judge asks you a question, it is a good chance to make your point understood. Whenever possible, try to answer questions in a short but complete answer. Do not test the judge's patience with long-winded stories!
However, it is very important to keep in mind that YOU are responsible for presenting all the elements of your case. The judge will not always ask questions, and you must make sure that you tell the judge EVERYTHING that is important for you to win your case.
The closing arguments are heard once all the evidence has been presented. In the closing argument, you SHOULD NOT present evidence or ideas that you have not already presented. The judge may refuse to accept new evidence at this stage in the trial.
The closing argument presents an opportunity to summarize your case in an organized way. You want to persuade the judge of your case and emphasize the important information you have brought before the judge. Repeating the evidence may not be very helpful. You may wish to bring it all together, outlining the importance of earlier statements or documents. You may also explain why the other party's statements or documents should not be believed. Try to prepare your closing statement before you come to court so that you include all the important points.
When the trial is over, wait in the court room so that the clerk can give you a copy of the judgement, which is called the endorsement.
Conclusion and Things To Remember
So now you are a bit more informed about what small claims court is all about. Here is a recap of some important things you should remember:
1. Always consider a pre-trial conference, because it can save everybody the time and money involved in going to trial. Even if you don't settle at pre-trial, you will have more information and be more prepared for trial. Consider it a great practice run that may even result in a settlement.
2. Get familiar with what happens in the courtroom, so you know when to speak and what to say. If possible, try to sit in on at least one trial for a short time, a few days before your own trial, so that the trial process is more familiar to you. You can talk to the small claims court information desk to find out when there will be trials, and you can generally simply walk into the courtroom to attend. Sit at the back and observe what goes on.
3. Prepare, prepare, prepare! Make sure you have summoned all your witnesses; make sure you have enough evidence to convince the judge of your side of the story; make sure you have served the other party with your evidence; make sure you bring all the important documents with you to court; and make sure you are ready to make your opening and closing statements.
4. Think carefully about how you will ask questions of witnesses. Prepare your questions in advance. The way you examine and cross-examine witnesses can help convince the judge and has an impact on the results of your case.
5. When in the courthouse, it helps your case to show courtesy and respect to the judge and to your opponent. While pre-trial meetings and trials can sometimes become very heated, remember that you will always make a better impression if you show some basic courtesy and respect. And remember that it is always important to tell the truth in cases. Lying can be a very serious matter.
6. Finally, use all the resources that are available to you. Review the Ministry of the Attorney General's brochure entitled "Small Claims Court" that is available on the Ministry's website at www.attorneygeneral.jus.gov.on.ca or at any court office. Court forms are available on that website, or at the court office, or at www.ontariocourtforms.on.ca. You can get more information on rules and laws at www.e-laws.gov.on.ca.