Trial Overview

Table of Contents

Overview

Under the legal system, the trial is the ultimate method of deciding disputes. There are two aspects to the decision at trial. The first involves a determination of what the relevant facts of the case are. The second aspect is the application of legal principles to those facts. Upon the application of the law to the facts, a court order is made in accordance with the legal rights and entitlements of the successful party. The order declares the rights of the parties in the particular matter. For example, it may order that compensation be paid by the defendant to the claimant for breach of a contract.

As set out in other chapters, the claimant set out the facts as he alleges them in his claim. The other party may deny or contradict those facts in his defence. By the time of trial, the documents should show what points are disputed and what is agreed. The purpose of the trial is to decide the facts. Once these facts are decided the law should be applied by the court and a relevant order e.g. for damages or compelling a party to do a certain thing should issue.

In some cases, the facts will be very clear. In the case of a written contract, for example, the agreement may be fully recorded in writing and not disputed. In other cases, the relevant facts may be highly disputed. There may, for example, be a dispute over the fact or terms of a verbal contract. There may have been an accident with conflicting views as to what exactly has happened.

Managed by Judge

The trial generally, is under the control and management of the trial judge. The judge may make such orders as are expedient for the efficient conduct of the trial consistent with the interests of justice.

The judge may make directions for the efficient conduct of the trial consistent with the requirements for justice. This may include orders fixing or limiting the time for each party in opening and closing the case and making legal submissions. It may include an order allowing total time for opening, closing, examination, re-examination and cross-examination of the parties and their witnesses

The court or court officer (in case management) may require parties to proceedings to provide reasoned estimates of the time likely to be spent in the proceedings.

Directions may be made as to

issues on which the court requires evidence
the nature of evidence required to enable the issues to be determined
the manner in which evidence is to be put
whether legal submissions are to be made
whether the judge will require oral legal submissions
requiring parties at any stage to identify the issues arising or remaining in issue for determination and
issues upon which the court is required to decide

Burden of Proof

A party who brings a claim has the “burden of proof”. This means that he must forward evidence or proof that the particular facts are as claimed. If he does not put forward proof of all the facts, which are required as a matter of law to establish his claim, then the case will be lost.

Likewise, the defending party will put forward the facts as he alleges them. Ultimately the Judge (in the vast majority of cases) or the jury (in a small number of cases) decides what the facts are.

In certain types of case, and in interim applications, the facts as alleged, are put forward in sworn written documents called affidavits. If it is shown to the court that issues are disputed, the witness can be called for cross-examination.

Non-Appearance

If the defendant does not appear, the plaintiff may prove its case in the absence of the defendant.

If the defendant appears but not the plaintiff, the defendant is entitled to have the action dismissed. If there is a counterclaim he may prove the counterclaim.

Opening the Case

In a civil trial, each side presents its case separately. The claimant commences. His barrister, solicitor or other representative gives an opening statement setting out the issues and facts he proposes to prove them. In the Circuit and District Courts, an opening statement may be dispensed with.

In the common law trial, the claimant/ plaintiff has the right to begin the case. This means that the claimant/ plaintiff or more usually the plaintiff’s solicitor or barrister, opens the case to the court. The opening of the case will involve introduction of the parties and the issues setting out the plaintiff’s case and the evidence and witnesses that it is intended to call.

Examination of Witnesses

The claimant/ plaintiff or more usually his or her solicitor or barrister,

calls the plaintiff’s witnesses for “examination in chief”
the defendant’s solicitor or barrister cross-examines each such witnesses
plaintiff’s solicitor or barrister redirect witnesses, on issues arising from cross-examination

Once the claimant’s witnesses have been heard, the defendant opens his case and calls his witnesses. The defendant or more usually the defendant’s solicitor or barrister replies in an equivalent way.

calls the defendant’s witnesses who are examined in chief
plaintiff’s solicitor or barrister cross examines the witnesses
defendant’s solicitor or barrister redirects on issues arising from cross-examination

Closing Arguments

The defendant makes his closing argument in the higher courts. The claimant then has a right of reply. The purpose is to explain the evidence and in particular, any inconsistencies in it.

If there are significant legal issues the claimant, may make detailed legal submissions after the evidence, with the defendant replying and the plaintiff having a right of reply.

The above is subject to the judge’s discretion and the practice of the court. If the defendant bears the burden of proof on every issue, the position is reversed. The defendant has the right to begin. If the defendant is not going to give evidence, the plaintiff sums up at the end of this case.

Where the trial is with a jury, the addresses to the jury shall be regulated as follows: the party who begins, or his counsel, shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence, and the opposite party, or his counsel, shall be allowed to open his case, and also to sum up the evidence, if any, and the right to reply shall be the same as heretofore..

Witnesses

A person who is called as a witness is obliged to answer all questions properly put to him. The questions must be relevant to that matters in dispute. They must seek evidence by way of the witness’ answer, is in accordance with the rules of evidence. If they do not do so, then the opponent or legal representative may object to the question.

Most persons are competent to be witnesses. There are restrictions on children giving evidence. The Judge will determine the child\’s ability to understand the duty to tell the truth. In the case of a person with a mental disability, the Judge must satisfy himself in relation to his capacity to give evidence as a witness.

Objections to evidence

Questions put to witnesses must elicit relevant material. The answers must be admissible under evidence rules. Counsel must ask questions that have a basis in the facts of the case. They must seek information relevant to the matters in issue. Questions cannot be put gratuitously that are irrelevant to proceedings.

The Judge controls and supervises the proceedings. The judge will rule on objections to the relevance or admissibility of evidence. Judges may have different approaches as to how they permit the conduct of the case. Some judges will seek to control and place order on the progress of the hearing, while others will give more freedom to the parties.

The Judge must be and be seen to be impartial at all times. A decision may be set aside on appeal if the Judge shows bias towards either party.

Purpose of Evidence

The purpose of the claimant’s legal representative’s questions is to “bring out” evidence of the facts he alleges, as the basis of his case. If, for example, if a negligence case arising from an accident is involved, the claimant will seek to prove that the circumstances are such that the defendant owed the claimant a duty to take care, that that accident occurred by reason of the defendant’s fault in breach of that duty and that it caused the claimant loss or damage. Evidence will be presented by questions to his own witnesses and cross-examination of the defendant’s witnesses.

The defendant’s legal representative’s questions, both in cross-examination of the claimant’s own witnesses and in questions to his witnesses, will seek to elicit evidence of the facts he alleges, as the basis of his defence. In the above example of a negligence case arising from an accident, the defendant may seek to prove that the circumstances are such that he did not owe the claimant a duty to take care, or that even if he did, that that accident did not occur by reason of the defendant’s fault, or that the claimant himself was at fault and /or that the breach of duty did not cause the claimant the loss or damage alleged.

Questions by Caller of Witness

A party who “calls” (i.e. puts forward) a witness, cannot generally ask leading questions through his legal representative in relation to disputed a matter. A leading question is one which suggests its answer or are requires a “yes” or “no” answer. Leading questions are usually not objected to in relation to undisputed matters, where this helps the flow of the proceedings

A witness will not be allowed to read a statement. A witness cannot usually put forward prior consistent statements he has made, to bolster his own evidence. However, the witness need not actually recall events or information, if details of them are contained in a note that he made at the time of, or shortly after the relevant events. A witness may consult documents made contemporaneously with the relevant events, in order to refresh his memory. Where a document is used to refresh a witness’ memory, it must be produced and given to the other party.

If a witness is called who gives evidence contrary to the case of the person who called him, then an application may be made to the Judge, to have him treated as a “hostile” witness. In this case, subject to certain conditions, prior inconsistent statements can be put forward to contradict the witness’s evidence.

Cross Examination and Re-examination

After the witness has given his evidence in response to the legal representative of the party who has called him, the opposing party’s representative may “cross-examine” that witness. Leading questions are permitted. Cross-examination may not seek inadmissible evidence

Cross-examination may raise issues of credibility bias, difficulties of recollection The witness’s credibility can be challenged by use of prior inconsistent statements, previous misconduct, bias, reputation for untruthfulness.

The Judge will consider whether evidence of so-called collateral matters, (e.g. matters not the direct subject of the case such as past misconduct implying unreliability the evidence) is sufficiently relevant in the circumstances. The evidence must not be disproportionate in importance relative to the purpose it is trying to achieve (e.g. challenge the credibility of witnesses). Once a witness answers a question in relation to collateral matters the response cannot generally be challenged further. There are exceptions in respect of prior convictions.

If the other party’s later witness, proposes to contradict the evidence of a witness, then the proposed contradictory evidence must be put to the witness. This gives him the opportunity to comment on it. If the contrary position is not put to a witness in cross examination, his evidence may be deemed to be accepted.

If a prior inconsistent statement is put to a witness he first be given the opportunity to confirm whether he made the statement and if he denies that he did, he must be given details of the circumstances in which he is alleged to have made the statement.

After cross-examination, representative of the party who called the witness may ask further questions to clarify matters raised on cross-examination. He may ask questions to explain or clarify and issues raised. No new issues may be raised .

Deciding the Case

In the small number of cases where there is a jury, jury find facts that judge gives direction as to the finding of facts, they must make . This enables the jury to give a verdict. When it will enable them to have an convert the findings of facts into a decision and apply the law The judges charge to the jury and allows them to apply the law and render a verdict . The judge to tell them the law and set out the facts relevant to the application of the law He should set out the rules he a should discuss the evidence and set out on whom the burden of proof is

Sometimes, particularly where there is in tort cases such as road traffic there may be two trials one in relation liability held first and second in relation to damages extent of last. See generally the section on trial of issues.

At the end of the trial of p to a general idea of a decision assuming no jury or the as are decisions . the judge meant court order is drawn up by the registrar.

A party must serve notice on the other party who has not appeared with a copy of the order. The order may be set aside within 28 days after the order, on such terms as the court sees fit.

Recording

The Courts Service undertake digital audio recording of proceedings. An application can be made for access. It is on notice to the other party. The court may make the recording available, if it considers it necessary in the interests of justice. It may be required for the purpose of an appeal. It may be potentially relevant to other proceedings. Access to a digital recording where required is provided in the form of a transcript subject to paying the costs of the transcript.

Generally, a party may make a transcript by a stenographer present in court. The stenographer records the evidence submissions and judgements.