In a previous article I talked about phrases used early in the litigation process. In this article I will talk about some of the terms that come up later in the process.
Arbitration
Parties can, by agreement in certain cases, exclude the jurisdiction of the courts to hear the dispute and render a decision. Arbitration clauses are powerful and, if correctly drafted, limit the involvement of the courts. The consequences are that the proceeding is heard in private by an arbitrator who may be legally trained but may be a non-lawyer having some special expertise in the subject matter of the dispute. There are some pros and cons to the use of arbitration which parties should be aware of prior to incorporating an arbitration clause in their agreements.
Without Prejudice
A communication stated to be without prejudice makes the communication nonbinding on the issue of liability. Settlement discussions are the best example of where without prejudice communications are used. If a party makes an offer to settle a disputed claim, he/she is not by that offer admitting liability.
Mediation
Mediation is a without prejudice process, usually voluntary, designed for the purpose of bringing parties together with the hope of resolving their claims. The parties usually attend with lawyers. At the mediation the parties exchange position statements and then, with the assistance of a trained mediator, begin the process of discussion of issues and how those issues can be resolved. The mediator does not make any finding on who is right or wrong but does guide the parties by ensuring they know both sides of the argument and the risks inherent in litigation.
Discoveries
Discoveries are pretrial processes designed to allow parties to know the case they have to meet. Documents are exchanged which are relevant to the proceeding. It is important to note that parties need to disclose documents that may be harmful to their case as well as documents they will need to rely on to make their case. Oral discoveries are examinations under oath of the opposite party. American legal television shows feature discoveries quite frequently. In the United States, discoveries are referred to as depositions. A transcript is taken of the discovery which can be used by the opposite party if the case goes to court.
Cross-Examination
In a discovery and at trial, lawyers use this technique to challenge and qualify the evidence given by a witness. Lawyers are not necessarily "cross" during these examinations but they are entitled to be forceful and somewhat confrontational. Despite being aggressive in their questioning, lawyers are required to be civil. Cross-examination is a key element to any civil case where recollection of events or credibility is in issue. Exposing an untruthful witness can only be done by testing the veracity of the witness with the use of probing questions.
Costs
The successful party in litigation is entitled to an award of costs from the unsuccessful party (unless the court otherwise orders). Costs form part of the judgment the successful party can recover against the unsuccessful party. It is rare for a successful party to be deprived of its costs. There are various levels of costs – the most common being known as party-party costs. The court has discretion, which is rarely exercised, to order a higher level of recovery known as solicitor-client costs. Party-party costs are not intended to indemnify a successful litigant for his or her actual legal bill. Actual legal bills are often much higher than any award for party-party costs. The rationale for not providing complete indemnity for legal costs is that some parties would refuse to consider settlement if they thought they could recover all of their legal costs by going to court.
In the next installment I will discuss some other terms including releases, discontinuances, and foreclosures (and some of the terminology used in foreclosures).
Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached at (250)869-1215 or [email protected].
