Top 5 Things Self Represented Litigants should know about conducting a trial
As a self-represented party, you must present your own case at trial. The purpose of this blog is to set out some practical and procedural matters with respect to the trial process in order to assist you in representing yourself.
In providing you with this information, we do not assume any responsibility to provide you with legal advice. Similarly, the judge who will be conducting your trial will not be able to give you legal advice. The judge must not only remain impartial, but must also be seen by all of the other parties to be impartial.
This initial blog cannot possibly cover all the things you need to know about conducting a trial, nor can it begin to replace the advice and assistance that would be available to you if you had legal counsel. Accordingly, you are urged to obtain legal information and legal advice to the extent you are able.
It is important to remember that you are fully responsible for the presentation of your case to the court. You cannot relieve yourself of this responsibility by simply relying on these comments or by relying on the fact that you are not represented by counsel.
If you have questions at any time, you should let the trial judge know.
All references in this blog to Rules are references to the Ontario’s Family Law Rules. Similarly, references to Forms, are Forms referred to in the Family Law Rules. Both the Forms and the Rules are available on the Ontario Superior Court Website: http://www.ontariocourts.on.ca/scj/en/famct.
So here we go, here’s our top 5 things you need to know about conducting your own trial:
1. Burden of Proof
If you are the applicant, the burden of proof will be on you to prove the claims in your Application. If you are the respondent, the burden of proof will be on you to prove any claims in your Answer. All claims must be proven on a balance of probability, i.e. greater than 50%.
2. Opening Statements
At the start of the trial, the applicant is entitled to make an opening statement outlining the background to the applicant’s claims against the respondent and a summary of the evidence that the applicant intends to call.
After the opening statement of the applicant, the respondent may also make an opening statement, outlining the defence to the applicant’s claims, the background to any claims being made against the applicant and a summary of the evidence that the respondent intends to call. A respondent may choose to wait to make an opening statement until after the close of the applicant’s case.
You are not required to make an opening statement. The choice of whether to make an opening statement will be solely up to you.
You must not interrupt the other party’s opening statement even if you disagree with parts of it.
What is said in the opening statements is not evidence. If what you say in your opening statement is not borne out by the evidence that is subsequently presented, or is contradicted by that evidence, then what you said in your opening statement will be ignored by the trial judge. The sole purpose of an opening statement is to enable the trial judge to better follow the evidence as it is called.
3. Procedure for Introducing Evidence
After the opening statements, the parties introduce the evidence that they each rely upon. Evidence may consist of testimony from witnesses or the introduction of documents.
If you are the applicant, you will have the right to testify and call witnesses to give evidence in support of your case first. Once the applicant’s case is closed, the respondent has the right to testify and call witnesses to give evidence in support of the respondent’s case.
During your evidence and the evidence of any witnesses that you call, you may produce documents that you or your witness are able to identify and those documents may be entered as exhibits in the trial.
The opposing party may cross-examine each witness that you call. You will have the right to re-examine the witness to clarify matters raised by the cross-examination. You may not raise issues during re-examination that were not discussed by the opposing party during cross-examination.
After your last witness has been called, you will close your case.
In calling witnesses in support of your case, the process outlined in the section “Questioning Witnesses” below will be followed. The introduction of documents as exhibits is dealt with in the section “Documents as Evidence” below.
If you decide to testify, it is customary for you to be the first witness called in your case. If you decide not to testify, you may still be called as a witness by the opposing party pursuant to Rule 23(11). You will be cross-examined by counsel for the other party or the party, (if that party is also self-represented). You will be required to answer all relevant questions subject to certain limitations.
Before you testify, you will be asked to swear an oath or to affirm that you will tell the truth. If you deliberately lie under oath, you may be subject to a charge of perjury, which is a separate criminal offence that bears its own separate penalty.
Because there will be no one in front of you asking questions during your examination in chief (see below under “Questioning Witnesses”), you must plan ahead what you will say. You must rely on your memory rather than reading a prepared statement of evidence. If you need to look at a document created at or about the time of the events in question, in order to remember details, you must first ask the trial judge for permission to do so. You will be required to tell the judge what the document is and why you need to look at it so that the judge can determine if it is permissible. If you want to ensure you do not forget to cover everything, a written outline of the topics that you want to testify about can be used, but you will have to show it to the trial judge and the opposing party first.
If you testify you must be very careful to keep in mind the distinction between “evidence” and “submissions” (see section below entitled “Closing Submissions” for more detail). When in the witness box you must restrict what you say to what you personally saw, heard, did, received, et cetera. You cannot make submissions from the witness box. If you testify, once your evidence as a witness has been completed and you have left the witness stand, you can no longer give evidence without permission from the trial judge, unless you are entitled to give Reply evidence, as set out below.
In essence, you will be heard by the trial judge in only two ways: either as a witness giving evidence from the witness box, or as a self represented party making submissions from the counsel table. You cannot combine the two and must at all times maintain this distinction.
If you do not call witnesses and do not testify, then the decision of the trial judge will be based on the evidence introduced by the other party alone. However, the other party will likely ask the trial judge to use the fact you did not call evidence to conclude that the reason you did not testify or call a certain witness is because had you done so, the evidence given would not have been favorable to you.
4. Reply Evidence
If the respondent decides to call evidence, after all the respondent’s witnesses have been called, the applicant may, in certain limited circumstances, be permitted to lead further evidence to reply to and rebut the evidence that the respondent has introduced. Such evidence is strictly limited to the purpose of replying to evidence of the respondent and may not include evidence that should have initially been part of the applicant’s case. If the respondent has made a claim against the applicant, the applicant will be entitled to call evidence to defend the claim in reply.
If the applicant is permitted to call reply evidence, the same procedure will be followed as was used for calling other evidence.
5. Closing Submissions
After all the witnesses have been called, both parties will have an opportunity to address the trial judge to make submissions about what the trial judge’s decision should be, based on the testimony that the witnesses have given and the contents of the documents that have been marked as exhibits. The applicant proceeds first, followed by the respondent. The applicant will have an opportunity to reply to submissions made by the respondent (this is different from “Reply Evidence”). You make your closing submissions from the counsel table.
It is important to remember that it is not open to you during your closing submissions to refer to matters that have not been referred to in the evidence. The purpose of your submissions is to outline your claim or defence and to review the evidence that supports your claim or defence and to point out the shortcomings in the evidence led by the opposing party.
So that is our top 5 things you should know if conducting your own trial. We hope this helps. Also remember to consider whether or not witnesses at your trial should be excluded.
When the trial begins, if you or the opposing party asks the trial judge for an order excluding witnesses, the judge will likely grant the order. In that case, except for you and the opposing party, all other witnesses will be asked to stay outside the courtroom until they are called to give their evidence. This is done in order to ensure, as much as possible, that a witness does not change his or her testimony in response to hearing the testimony of some other witness.
If such an order is made, you must not discuss any of the evidence given at the trial with any of your witnesses before they are called to testify. You must also ensure that your witnesses are aware of the order and do not discuss their evidence with anyone until after the trial is over.
Remember it is never a good idea to represent yourself. Try to get some legal advice and assistance before chosing to conduct your own trial.
This blog was based in part on a hand out some Ontario Superior Court Judges provide to self represented litigants at the commencement of their trials.