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There are several different aspects of the trial process. This includes presenting evidence and making an argument. There are also many procedural issues that the court will deal with. Courts often determine things during trial such as whether evidence is admissible.
The plaintiff presents their case first. The defendant presents their case once the plaintiff is done. In the Court of King’s Bench, both parties address the court at the start of the trial with the plaintiff going first. In Small Claims Court, the parties generally start their cases by testifying themselves to give the court an overview of the case.
Once the trial is underway, it can be adjourned by the court as the court sees fit. If you want to ask for an adjournment because a witness did not appear, you must apply to the court. You must include an affidavit stating that you believe you have a valid case and are not just delaying the matter.
You present your case by calling your witnesses to the stand to testify. You can decide what order to call your witnesses in. You can also decide when and if you want to testify. You can testify at any time during your case, but you can only testify once. Both parties can ask that witnesses not be in the courtroom until it is their turn to testify. Once a witness takes the stand, they will swear or affirm to tell the truth.
You generally cannot ask the witness about things the witness does not have personal knowledge of. This may be something they only heard about from someone else but did not see or hear for themselves.
Whoever called the witness will question the witness first. This is called examination-in-chief. It is important to ask questions that allow the witness to explain who they are and why they are testifying. This includes asking them their name and profession, if it is relevant. This will help the court understand your evidence.
When questioning your own witnesses, you must let the witness tell the story. Unless you are asking them something that is not in dispute, you should not ask a question for which the answer is simply “yes”. That is a called a leading question. For example, "Did the defendant break your window instead of fixing it?" is a leading question. Instead, the question should be something like "What did the defendant do to repair your window?"
After the examination-in-chief, the other party will have a chance to ask your witness questions. This is called cross-examination. Leading questions are allowed during cross-examination. However, the questions put to the witness must still be framed as questions. The purpose of cross-examination is to test the observations, recollections and truthfulness of the witness. Matters that were not brought up in the witness’s testimony can be brought up in cross-examination if they are relevant to issues in the case or to whether the witness is being truthful.
You may be able to contradict the testimony of the other party’s witness through your own evidence later. If you do, you must first give the witness a chance to address the contradictory evidence during cross-examination. If not, the court may not consider the contradictory evidence you provide later.
For example, a witness for the other party may say that they never spoke with you about a particular issue. If you have evidence that they did talk to you, you must put that evidence to the witness during your cross-examination of them.
After the cross-examination, the party who called the witness can re-examine the witness. Re-examination can only be used to clear up things that were brought up in the cross-examination. It is not a chance for the witness to give new evidence on a matter not discussed in cross-examination. It is also not a chance to cross-examine your own witness or ask leading questions.
Here are some things to consider when you are on the witness stand…
Most people will have materials to support their case. These could include things like:
You must give the other party copies of all these documents before the trial. In the Court of King’s Bench, this is done through your affidavit of documents. In Small Claims Court, your documents should be served on the other party and filed with the court before your case management conference. You and the other party may agree before the trial to submit certain documents to the judge as evidence. These documents are then given to the court at the start of the trial and marked as exhibits.
Before the trial, all your supporting material should be organized by numbering each document and creating a master list. You should also have four copies of each document in court: one for you, one for the other party, one for the witness and one for the court. For ease of reference, the master list with the attached numbered documents may be presented to the judge at the start of the trial. It can also be presented to witnesses during the course of the trial.
When your materials are entered as exhibits they become evidence in the case. To enter a document as an exhibit, you normally need to call the person who prepared or created the document as a witness. The witness who created it is shown the original document and asked about it. The document is then given to the judge and marked as an exhibit.
Some documents can be submitted without calling a witness to testify about the document if the other party does not object. For example, a medical report or an appraisal can be submitted without calling the doctor or the appraiser, unless the other party objects. You can also apply to submit the report of an expert witness without calling the expert. An expert is different than other witnesses because they testify about their opinion, not just about the facts.
There are very specific rules concerning expert witnesses, appraisals and medical reports. If your case is in the Court of King’s Bench and you are going to use any of this kind of evidence, you need to look at Division 3 of Part 5 of the King’s Bench Rules. These rules deal with experts and expert reports.
Your argument itself is not evidence but must be based on the evidence that was presented to the court. If you bring up facts during argument that were not entered through testimony, the court will not consider those facts.
Once both parties have called all their witnesses and cross-examination has finished, each party has a chance to make closing arguments to the court. It may be useful to make a list of points you wish to cover for argument. The plaintiff goes first.
Your closing argument should briefly summarize the evidence and explain why it supports the outcome you are requesting. You cannot refer to anything that the court ruled could not be used as evidence. Evidence that the court does not allow is called inadmissible. You can also refer to laws or cases that you think support your case.
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