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 truth, the whole truth and nothing but the truth, so help you God?”, can be modified according to religious preference. A witness who does not want to swear a religious oath should give a solemn affirmation. The wording of the solemn affirmation is: “Do you solemnly affirm that the evidence you are about to give the court in this case shall be the truth, the whole truth and nothing but the truth?”.

A witness does not need to know the details of each party’s position. If a witness has been told the merits and legal arguments of each side, there is a risk that the witness may advocate for a party by including arguments while testifying. Such conduct is not persuasive, suggests that the witness may be biased, and may undermine the witness’ credibility.

3. Arranging an Interpreter

Trials and hearings are conducted in English. If a party or the party’s witness does not speak English, the party must arrange for an interpreter to be present. There is a list of interpreters available from the court registry however the court does not certify interpreters252. A party may use any person who is competent to reliably, accurately, and competently translate what is said in court; the judge has, however, discretion to reject the party’ s choice of interpreter.

An interpreter should be prepared to testify as to their experience and training. An interpreter who is related to a party may be rejected on the basis of potential bias and an interpreter who is inexperienced or untrained may be rejected on the basis of incompetence. If a party does not arrange an interpreter for a hearing or if the court rejects the interpreter, the party may be liable for a penalty and the reasonable costs of the other party. The party requiring an interpreter should ask the judge at the settlement or trial conference to decide whether the chosen interpreter is acceptable.

The party requiring the interpreter is responsible for the costs of the interpreter; these costs can be, however, recovered if the party is successful at trial.

4. General Advice for Witnesses

• Discuss whether the witness will swear or affirm their testimony.
• The microphones in court do not amplify; they are for recording purposes only. Face the judge when testifying and speak slowly, clearly, and loudly enough for the judge to hear.
• Witnesses should wear appropriate business attire.
• Witnesses should never guess, assume, or argue with the judge or one of the lawyers.
• If a lawyer or other party says, “Objection”, or the judge starts speaking, the witness should stop testifying and wait for the judge’s instructions.
• On direct examination, the witness should answer questions fully.
• On cross-examination, the witness should answer as briefly and succinctly as possible.

D. Documentary Evidence

Each party should have the original and three copies of each document to be entered as an exhibit. The original will be marked as an exhibit and the other three are for the judge, the opposing party, and you to work from during the trial. Keep track of the exhibits and always refer to them by the correct number.

Before a document can be marked as an exhibit, it must be authenticated. The witness must identify its origins and that it is a true copy. Give the original document and a copy to the clerk and ask the clerk to show the original to the witness. Ask the witness to identify it: “I’m showing you a letter dated...”, “Do you recognize it?”, “Is this your signature?” or “Is it addressed to you?”When the witness has identified its origins and there are no objections, ask the judge to accept it as an exhibit: “May this be marked exhibit #1?”

NOTE: In exceptional circumstances, the judge may permit a witness to provide evidence by affidavit rather than testifying at trial253.

NOTE: A judge may examine and compare headshots or handwriting, but should only place very limited weight on their own judgement in these situations254.