Sample evaluate question

1. Sample evaluate question • Critically evaluate the effectiveness of the adversary system. (10 marks) • How will you answer? • Spend five minutes planning an answer to this question. How would you break down the marks? • Content? Structure?

2. Answer • 10 marks: 2 marks for intro, 8 marks for strengths/weaknesses (e.g. S/W, S/W, W/S, W/S), 2 marks for conclusion • Content: • Intro – general statement about the adversary system; could describe/define what it is • S – parties are in control therefore motivated to present best case; W – may deliberately or inadvertently omit evidence resulting in the truth not being discovered • S – judge is independent and impartial ensuring trial is fair; W – judge is not able to take an active role in the case e.g. gathering evidence or assisting parties.

3. Answer (cont.) • W – strict rules of evidence and procedure are complex, necessitating the use of legal representation; S – strict rules ensure fairness to both parties • W – the need for legal representation means that the system is only accessible to those who can afford it; S – legal representatives ensures cases are presented in the most effective way • Conclusion: statement about the overall effectiveness of the system (agree or disagree)

4. Consolidation • In textbook, work through the Skill Drill on pp 321-322. Complete questions (b) and (e) – both ‘Discuss’ questions. • What does a ‘discuss’ question require? Consideration/examination of the idea. Can include discussion of strengths and weaknesses but doesn’t require the same structure of an evaluate or critically evaluate question.

5. Civil procedure – key knowledge • Key knowledge: • Supreme Court civil pre-trial procedures, including pleadings, discovery and directions hearings, and the purposes of these procedures (Pre-trial procedures only) • The purpose of civil remedies • Types of civil remedies, including damages and injunctions

6. Civil procedure – key skills • Key skills: • Describe the pre-trial procedures for the resolution of civil disputes, and compare their relative purposes • Discuss the ability of civil remedies to achieve their purposes • Evaluate the extent to which court processes and procedures contribute to an effective legal system

7. Types of civil disputes • Brainstorm a list of types of civil disputes • What else do you already know about civil disputes? (Think back to outcome 1 of Unit 4)

8. Definition • A civil dispute occurs when one party believes that their private rights have been infringed by another party, and they take action against that party. • Parties involved can be individuals, companies or governments. • Aim of taking action is to restore the person whose rights have been breached to their original position, and compensate them for any loss suffered (damages). • Types of injuries which can be claimed: physical, emotional, psychological, financial damage or loss

9. Some examples • Woman sues a CBD bar after being blinded in the eye by a stick protruding from a pot plant (negligence) • Man takes action against his neighbour for doing something that interferes with his enjoyment of the land, for example, a barking dog (nuisance) • Woman takes action against a building company for failing to complete renovations to her house to the agreed standard (contract) • Man takes action against a magazine for printing articles claiming that he was involved in criminal activities (defamation)

10. Terminology • The person bringing the action is called the plaintiff (complainant in the Magistrate’s Court) • The person against whom the claim is made is called the defendant • Burden of proof is on the plaintiff. Standard of proof is ‘on the balance of probabilities’ (lower standard than criminal cases) • Verdict – defendant if found liable or not liable • Remedy – the solution to the problem e.g. payment of damages

11. When to bring action - factors • Costs, including legal fees and how much damages are likely to be (i.e. will they cover your costs) • Likelihood of winning • Possible publicity. This is a significant factor for public figures as well as companies • Personal circumstances – do you have the time and energy to see a case through legal proceedings? • Defendant’s ability to pay – if case is successful, will defendant be able to pay damages? • GM test case: http://www.youtube.com/watch?v=IzenLY_qYK4

12. Civil dispute resolution options • Talk to other party and try to resolve dispute through direct negotiation (e.g. make complaint, discuss, parties agree to a solution) • Resolve dispute through mediation, conciliation or arbitration • Resolve dispute by reaching an out-of-court settlement e.g. payment of an amount of money or agreement to abandon any legal action • Pre-trial procedures are also intended to help parties resolve their dispute before reaching court e.g. through exchange of documents • Legal action

13. Letter of demand • A letter of demand is the first stage of a civil action. This is a letter sent by the plaintiff to the defendant outlining the alleged breach of rights and what the defendant needs to do to avoid legal action. • Read the example on p 335 of the textbook. What do you notice? • Sometime a letter of demand is sufficient to resolve the dispute e.g. Krispy Kreme • http://www.theage.com.au/victoria/victoria-police-settle-racial-harassment-case-20130218-2emfd.html - Why do you think this case was settled?

14. Civil procedure rules • Here’s a good reason why legal representation is needed in civil disputes: • http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt7.nsf/DDE300B846EED9C7CA257616000A3571/1F503E2038C7E940CA257B6000215003/$FILE/05-148sra045%20authorised.pdf • The rules and procedures are very complex. You only need to know three of them: • Pleadings • Discovery • Directions hearings.

15. The purpose of pre-trial procedures • To inform both parties of information relating to the case — the plaintiff will find out information relating to the defence, and the defendant will find out information relating to the claim • To determine whether it is worthwhile proceeding with the case • To find out the strengths and weaknesses of each other’s case • May lead to an out-of-court settlement negotiated between the parties, meaning the cost, stress and inconvenience of going to court is avoided • To provide the court with information about the case before it begins, leading to a quicker trial • May result in some issues being conceded by the parties, therefore only those issues in dispute are heard at trial.

16. Pleadings • Involves the exchange of written documents prior to trial to help clarify the issues. • Pleadings include all the details of the case including: • The claims made (writ) • Defences • Counterclaims • Remedies sought

17. Writ • A formal court document that notifies the defendant that legal proceedings are being taken against them. Prepared by the plaintiff’s solicitor and lodged with the Supreme Court. • Sets out: • The case against the defendant (the nature of the claim) • The remedy being sought • The date and time at which the defendant needs to appear in court • A time limit for the defendant to respond to the plaintiff • Once the writ is lodged with the court, it needs to be served on the defendant (delivered by hand, or posted if defendant is a company) • Can also use an originating motion to commence proceedings where there is not defendant or where facts are unlikely to be disputed

18. Statement of claim • Sets out the claim made by the plaintiff against the defendant, and the remedy that is being sought • Usually lodged with the court at the same time as the writ. • Summarises the facts of the case (sometimes called the ‘particulars’) but not the evidence

19. Notice of appearance • Once a writ has been served on a defendant, they have ten days to respond. Their response will be in the form of a notice of appearance. • Also a formal legal document, generally drawn up by the defendant’s solicitor • Acknowledges that the writ has been received, and that the defendant will defend the claims • Must respond within the timeframe given in the writ

20. Defence • The defendant’s response to the allegations made in the statement of claim • Normally admits or denies the allegations e.g. might acknowledge that a particular action occurred but explain valid reasons why this happened • Deals with the facts of the case • (Formerly known as a statement of defence)

21. Counterclaim and Reply • Defendant can make a claim back against the plaintiff • See top of p 339 for an example • Plaintiff can reply to the defence if they wish to acknowledge certain facts. • A reply would also incorporate their defence to a counterclaim, if one has been made

22. Discovery • This is the second of the procedures you need to be familiar with • Once both parties have been informed of the legal proceedings through pleadings, discovery gives them the opportunity to request documents and other information from the opposing side – focus on fact finding • Defined as ‘discovery and inspection of documents and discovery by written interrogatories or oral examination’ • Each party needs to reveal all their relevant documents

23. Purpose of discovery • To allow the parties to get further information about the facts of the case • Requires the parties to disclose all relevant material and documents to the other side • Reduces the element of surprise at trial and saves time because evidence has already been seen • Ensures all parties have copies of relevant documents • Allows each party to determine the strength of the other side’s case and determine the likelihood of their success • Assists in reaching an out-of-court settlement • Narrows down issues in dispute

24. Steps • Interrogatories: a list of specific questions relating to the dispute. Opposing party must answer in writing within a set timeframe. Evidence from this process can be used at trial → saves time • Discovery and production of documents: either party can request the other party to provide access to documents they intend to use in the case. • Some examples of types of documents that can be requested: contracts, letters, receipts, emails, videos, audio

25. Directions hearings • Held before a judge or associate judge • Aim is to identify the main issue and set directions for how the case should proceed including setting a timeframe for future actions (e.g. steps that need to be taken before the trial – filing of certain documents) • Give direction for any steps the court believes will assist the matter to be resolved in the most ‘effective, complete, prompt and economical’ way • This is the stage when the parties might be sent to mediation or arbitration (does not need consent of the parties)

26. Purpose of directions hearings • To set a timetable for future steps in the pre-trial proceedings stage • To hear any applications made by the parties prior to going to trial • To establish further orders in the proceedings to ensure an effective, complete, prompt and economical determination of the case • To allocate a date for trial.