Small Claims Trial Preparation (20:XIII)

Many, if not most, litigants find trials to be extremely unnerving. While a small claims trial is not predictable, preparing well in advance can help a party to avoid surprises, present a more compelling case, and alleviate fears about the process.

It is important to consider the merits of a claim before proceeding to trial. If there is no reasonable or admissible evidence, the claim is bound to fail (e.g., a statute prohibits recovery), or a limitation period has passed, the judge may impose a penalty. A penalty of up to 10 per cent of the amount of the claim may be imposed if a party proceeds to trial without any reasonable basis for success244.

A. Trial Binder

A tabbed trial binder helps a party to effectively present its case at trial. A suggested format is:

Tab l:	Opening Statement: a brief summary of the issues in the case.
Tab 2:	Pleadings: all filed documents in chronological order with a list or index.
Tab 3:	Orders: all court orders that have been made.
Tab 4:	Claimant’s Case: anticipated evidence of the claimant and claimant’s witnesses, including reminders for introduction of exhibits and blank pages for taking notes of the cross-examination.
Tab 5:	Defendant’s Case: blank pages for notes of the direct examination of defendant and defendant’s witnesses and anticipated cross-examination questions.
Tab 6:	Closing Arguments/Submissions: brief review of the evidence, suggested ways to reconcile conflicts in the evidence, a review of only the most persuasive case law and its application to the facts.
Tab 7:	Case Law: prepare three copies of each case relied on (for you, the judge, and the opposing party). Carefully scrutinize the need for multiple cases to support your argument and limit yourself to as few as possible.
Tab 8:	Exhibits: you will need the original (the exhibit) and three copies (for you, the judge, and the opposing party). You need to be able to prove when, why, and by whom the exhibit was created, and also be able to argue why it is relevant (i.e. document plan or photograph).
Tab 9:	Miscellaneous: any additional documents, notes, lists, and correspondence.

B. Expert Witnesses

Expert witnesses should only be permitted when their expertise and special knowledge is necessary for the court to understand the issues245. The expert’s testimony cannot include the expert’s assessment of the credibility of either the claimant or the defendant246. Expert witness testimony is inadmissible if it relates to issues that the court is capable of understanding and analysing without assistance247.

Evidence may be given by an expert at trial or through a written report. An expert report must be the opinion of only one person. Written reports or a notice of expert testimony must be served at least 30 days before trial248.

An expert witness report should include the resume or qualifications of the expert, a brief discussion of the facts of the case supporting the opinion or conclusion, the opinion or conclusion itself, and what was done to arrive at that conclusion.

An exception to the “in person” rule for expert witnesses is permitted for estimates and quotes. A party may bring a written estimate for the repair of damage or a written estimate of the property value and present it as evidence at trial without calling the person who gave the estimate or quote. Parties should obtain more than one estimate or quote, especially if the sum of money involved is large. Estimates of repairs or value of property are not considered to be expert evidence249, but must be served on all other parties at least 14 days before trial.

If the claimant does not serve the estimate in time, they can ask the trial judge for permission to present it anyway at trial. The claimant may or may not get permission to do so. The other party may ask for a trial adjournment to obtain his own estimate or quote. If the adjournment is granted, the claimant could be penalised and ordered to pay the other party’s expenses.

C. Witness Preparation

A party should review the evidence of its witnesses at least one week before trial and confirm the witnesses’ attendance. Witnesses should understand how a trial is conducted, the role of a witness, and the requirement that witnesses tell the truth.

1. Ensuring Attendance

Each party must ensure that its witnesses will attend court. If a party is not absolutely certain that a witness will attend, the witness should be personally served with Form 8: Summons to a Witness together with reasonable estimated travelling expense at least 7 days before the witness is required to appear250. The minimum travelling expenses must cover round-trip, economy fare such as bus fare to and from the court. While lost salary and other expenses do not have to be paid, a party should be reasonable and generous if possible to avoid making a witness bear the cost of litigation.

If a witness who has been served with a summons does not appear at trial, the summoning party may ask the judge for an adjournment or a warrant of arrest251.

2. Telling the Truth

Giving evidence in court is a solemn and serious affair. Lying to the court can be a criminal offence and result in imprisonment. A witness must be well prepared to give evidence.

To emphasise the formality of the proceeding, witnesses must either swear an oath to or solemnly affirm that they will tell the truth. Sworn and affirmed testimony are equally regarded; the choice of whether to swear or affirm is the witness’.

Swearing an oath involves the witness placing their right hand on a religious text and swearing to tell the truth with reference to their chosen religion. While the bible is the default, several religious texts are available if pre-arranged with the court. The standard oath, “Do you swear that the evidence you are about to give the court in this case shall be the