 Thank you so much for coming out on one of the rainy spring nights that I've seen in a long time. You had every incentive to stay home and watch Coronation Street, so I'm delighted that you're here. My name is Professor Cynthia Tudor, and I'm a faculty member here at the Law School. I've been a lawyer for close to 25 years, and when I was in private practice, I was a litigator. So I did court work, mostly civil litigation, family law, and criminal law. In these days, I teach civil procedure here at the Law School, in fact, right in this room last year. Civil procedure is the course that law students take on how cases move through the court system. So I teach that, I teach tort law, negligence essentially, family law, and advocacy here. So all of you know that Shulik is videotaping this session, I think for posting on the school's YouTube channel. So it will be available later on if you want to rewatch it, or if you want to tell someone else about it. And the past many laws are also archived there. Now I have a handout for everyone, and I hope you have it. It's a handout of my slides with three slides per page so that there's some room for you to make your own notes if you wish. And I also have two other handouts. There's a handout on legal resources, so that ever-illusive legal advice that I know all of you want and probably are having difficulty getting, I have a handout with lots of sources for legal information and legal advice. And for those of you who do opt to be represented by a lawyer, I have a short handout on 10 tips for a cost-effective lawyer-client relationship. So those last two handouts are at the front, come around at the end, say hi to me, and pick up a couple of the handouts. So I want to talk about first what this session is going to cover. So here we go. We have 90 minutes tonight, and what I'd like to do is take about 75 minutes to chat with you about the topics that are here on the slide, and then leave about 15 minutes for questions at the end. My work has mostly been in and around the court system, so there's lots of ways to navigate the legal system, but tonight I'm going to focus on the ways and the kinds of legal issues that end up in the Nova Scotia civil and family courts. And I assume that most of you are here because you're either currently involved in a court case or you're thinking you might start one. How many is that true for? Show of hands? Okay. How many are here to hear about civil non-family cases? Show of hands? Okay. How many are here for family law cases? A couple. And are there any other kinds of cases you're here hoping to hear about tonight? Probate? Okay. I don't have the whole lot for you, but the legal resource sheet will, and I'll give you a, if you want to come and chat with me, I'll show you where you can get some more information on probate. Are there any access to justice advocates here tonight? Not tonight. Look, last time I did this talk, there were some access to justice advocates as well. All right. So if you're thinking about starting a legal case or you're already working on a legal case for yourself, the first thing that I want to let you know is you are not alone. If you have a legal problem, the federal department of justice has estimated that nearly 12 million Canadians will experience at least one legal problem in any three-year period. And we also know, yeah, wow. We also know from research that vulnerable people tend to have more contact with the legal system than others do. So there was an Australian study that concluded that 22% of the population had 85% of the legal problems. And Canadians studies have made similar findings that legal problems tend to cluster and multiply in a pattern that cascades and disproportionately affects vulnerable Canadians. So if you are trying to address your legal problem without a lawyer, you are also not alone. Self-represented litigants, SRL sometimes you'll hear them called self-represented litigants now outnumber people with lawyers in the Nova Scotia courts, particularly the Family Court, the Small Claims Court, and pushing into the Nova Scotia Supreme Court about half the litigants in the Nova Scotia Supreme Court now are representing themselves, and about a third of the litigants at the Nova Scotia Court of Appeal. There are even guidelines for self-represented litigants at the Supreme Court of Canada, if you want to think about that for a moment. And I want to make the point, I'm not that old, I hope I'm not that old, but it wasn't always that way. So backwards in time, 25 years or so when I started practicing law, do you know how many people were self-represented, roughly, in the legal system? One hazard to guess. It's close, 5%. It went from 5% in the early to mid 90s to 50%, even up to 80% self-represented litigants now. That's an amazing sea change, and not always a good change. And the other thing that's been going on in the last 25 years is court cases have become more lengthy, the rules have become more complicated, and legal aid budgets stagnated. Most people in Nova Scotia can't get legal aid if they have a job, or maybe partial legal aid. The income cutoff is very, very low. So today's self-representation in Canada's courts hovers around 80% once you consider all courts and tribunals. And I'm not going to tell you anything here that you don't know. The final report of the National Self-represented Litigants Project concluded that while many self-represented litigants started out optimistic, within a short amount of time, almost all of them became disillusioned, frustrated, and in some cases overwhelmed by the complexity of their case and the amount of time that it was taking. Sound familiar? Probably, yeah. So in short, we have a serious access to justice problem in Canada. A 2013 Canadian Bar Association study called our legal system badly broken and profoundly unequal. That's pretty tough. Now if there is an upside at all to this, it's that the legal system is slowly adapting and transitioning to one that is more accessible to self-represented litigants. And there are more resources now than there have ever been to help self-represented litigants. So I mentioned I put together a handout. It's a four-pager, and it includes a big list of resources to help self-represented litigants through the system. It's meant to be an adjunct to the talk, so don't go away without taking that with you. It'll be one way that you can help yourself with your case. Okay, so let's get into the meat of things. I'm going to tell you something else that you've probably heard before. I will be giving you lots of legal information tonight, but I'm not going to be giving you legal advice. You say, why not? She's a lawyer. Finally, I can get some legal advice. The reason that I can't give you legal advice is that I am a non-practicing lawyer now, and it's illegal. Certainly in Nova Scotia, I'm assuming in every jurisdiction in Canada for people to give legal advice if they are not practicing lawyers. And so that's why you'll come up against again and again court staff, other people in the justice system, nonprofits, access to justice advocates will tell you, I can give you legal information, but I can't give you legal advice. Now one of the things in my handout for legal resources is going to be ways for you to get low-cost legal advice. There's a whole bunch of them out there, and so that will help you with the legal advice angle of things. So the difference between legal information and legal advice. Legal information just tells you something general about the law or the legal system, and it's not tailored to your case or to anybody's specific case. Legal advice applies that same law to a specific set of facts and says something about that. So by way of example, I have a slide here explaining the differences between legal information and legal advice. And sometimes the line is a little hard to draw, so I'll give you a few examples as you take a look at the slide. So legal definitions. You could ask, what does matrimonial property mean? So for those of you who are doing a family case, that's legal information. Is my heirloom set of dishes from my grandmother matrimonial property? Legal advice. Here's another one, procedures. These are the steps that you need to take in a lawsuit. That's something I'm going to be telling you about tonight. Legal advice, you should file an application in court. That's the best option for your situation. How about information? Here's a booklet explaining the federal child support guidelines that will help you calculate the table amount of support. Legal advice, the amount of table, table amount of support for your situation is $450 per month. Here's another one. Mediation is a confidential voluntary process to help people resolve their disputes versus I recommend you try mediation. So as I mentioned, most of the people working in the legal system, they can't answer questions that will give you legal advice. They can only provide legal information. To get legal advice, the bottom line is you have to speak with a practicing lawyer. Any questions about that so far? Pretty good. And I'll remind you, I'm happy to take questions during the session, but do remember the video recorded. If you have a more private question, feel free to approach me after the session as long as it's for legal information. Okay, so let's get into making and defending claims in civil cases. And what I've tried to do with this, I know that you probably have many different types of claims. You might be involved as a plaintiff, the person who's making the claim. You might be involved as the defendant, the person who's been sued and is unhappily before the court. You might have a family case. You might want to go to small claims court. So all different kinds of cases. And what I've tried to do is make my comments about making and defending cases generally applicable to any kind of case that you might make. I thought that would give you the most bang for your buck tonight. So let's talk about it. The first thing I have to tell you about, I do a whole class on this with my civil procedure students, is limitation periods and deadlines. So you need to know that if you want to make a legal claim, the law often sets a deadline by which you have to make it or lose it. That's called a limitation period. And in Nova Scotia, we have a law called the Limitation of Actions Act. It's called that in most provinces. And this law, which came into effect in 2015, now we had one before that, it was just different. This law sets a basic two year limitation period from the time the claim was discovered. So what does that mean? It means that if you didn't know you had it, the limitation doesn't start to run typically, at least not for quite a while. And it means that if you ought to have discovered it, it starts running when you ought to have discovered it. So it runs from the time the claim is discovered or ought to have been. That might be the day it arose or it might be a little bit later depending on the situation. Like you get your car fixed and then the wheels fall off two months later, right? You might not have known when you got the car fixed that that was going to happen. But when the wheels fell off, you surely knew that there was a problem. So that's the limitation period. Now, it would be really easy if I could tell you that the limitation period in Nova Scotia is two years. That's what it is. And off we go. But it's never that simple, is it? There are many, many limitation periods in other laws in Nova Scotia, more than a hundred. And many of them are shorter than two years. So for instance, if you want to challenge a tribunal decision, it's six months. If you want to challenge a judge's decision about how your civil litigation or how your case should proceed in the Nova Scotia Supreme Court, you have two weeks. So all of which is by saying the periods can be much, much shorter than that. Sometimes you have to give notice if you want to sue the government. You have to tell them you're going to sue them before you actually sue them. So the very first thing you should do if you're thinking about making a claim is find out what the deadline is and write it down somewhere prominently and make sure that you don't miss it. Now, I've put in my handout on legal resources, the Lawyers Insurance Association. This is the association that ensures lawyers for malpractice has a table of limitation periods on their website. I've included a link so you can take a look. It's a way it gives you a list of all of the other laws that include them and they have a prominent disclaimer on there. Don't rely on this. Do your own research and confirmation. But the link is there and it'll at least help you get started on what the deadline might be. So what happens if you miss one of these deadlines? Well, some of them may be extendable. There's a provision for extending a little bit of an extension in personal injury cases, different types of cases, different kinds of decisions. But in an awful lot of cases, if you miss the deadline, you're done. There's nothing the law can do. And that's why it's so important not to miss the deadline. So if you can't figure out what the deadline is on your own and you're worried about it, you won't be able to take action before the limitation passes. This is a great topic for summary legal advice. You can ask a lawyer a question. What's the limitation period in my case and get a specific answer and then go with that. Okay, so you can make a claim, but should you? It's really important before you embark on this lengthy, difficult, complex process that there's something at the other end that you could hope to achieve. And one of those things you'll need to figure out is, is the person or the business that I'm thinking of suing, do they have any money? So why get a judgment at the end of the day? Do I have a nice piece of paper that I can frame or am I actually going to see some money? Now if you're suing a government or a large organization or a big business, they probably are going to pay up if you get a judgment. But things get a lot trickier if you're suing an individual or a small business. So what I would say is try to find out before you commence a lawsuit, try to find out if there's going to be something at the other end of it for you. So you can try to find out, does the person or the business that I'm going to sue, do they own a home or property? Do they have a job? Do they own a major asset like a car or a boat? You can check have they already been sued or worse have they already got judgments against them? All of that information is mostly public and it's available if you know where to look and happily knowing where to look is legal information. So staff can tell you what to do with that and how to find out whether the person owns property, whether they already have judgments against them, whether there are cases outstanding and all of that. But take that step if you're suing an individual or a small business before you go and spend a lot of money and time and effort to get a judgment that you may never be able to enforce. Any questions about that? We good so far? Okay, so let's go on and talk about well, what court do I need? And I'll give you some legal information that will help you choose for your type of case, which type of court may be the right one for you. I want to talk first about small claims court. This is my one of my favorite courts in Nova Scotia because the access to justice available through the small claims court is absolutely phenomenal. So if your case is worth $25,000 or less or maybe slightly more, but you're willing to give up the difference, if you can bring a case in the small claims court, if it is one of the types of cases that the small claims court can handle. So I've listed there on the slide, these are, they're not the only kinds of cases the small claims court can handle, but they're the typical cases that the small claims court can handle. And it's a lot of the kind of disputes that arise in ordinary business. So why do I like the small claims court so much? You can get a hearing in a couple of months and you can get a decision within 60 days of your hearing. It's relatively inexpensive. It costs a hundred bucks or 200 bucks to file a claim depending on the size. And there's a low income waiver if you can't afford it. Hearings are typically scheduled at night. So unless you work night shifts, you don't even have to miss work to make your claim. And while the procedures are much simpler than in regular court, one of the downsides is that if you get a judgment in the small claims court and the defendant doesn't pay, the enforcement process unfortunately is still fairly complicated. The other drawback to small claims court is the legislature has set aside certain cases that the small claims court cannot hear. And this is a list of the kinds of cases that the small claims court is not allowed to hear. If you have a case that's one of this type, you have to bring it in the Nova Scotia Supreme Court. Yeah, I'm going to mention that when we get to legal costs. Yes, absolutely. So the other point was there can be no legal costs. So what happens in the Nova Scotia Supreme Court is if you win your case, the other side typically gets ordered to pay a portion of your legal fees. And if you lose, you have to pay a portion of theirs. And the costs awards are getting bigger and bigger. They can be devastating financially. So small claims court won't give you an order contributing to the cost of your lawyer. If you decide to take one of small claims court, some people do 25,000 bucks is a lot of money. But on the other hand, you're not at risk of a judgment for costs if you lose. And it's a way to make a case and get a decision and resolve a dispute in a relatively cost effective, simple, easy way. Okay, so let's assume though, for whatever reason, small claims court is not for you. Maybe your dispute is worth more than 25,000. Maybe it's not one of the cases that can be heard in the small claims court. What next? The next step is the Nova Scotia Supreme Court. Now the Nova Scotia Supreme Court can hear almost every type of case, but it's more expensive. It's more complicated, a lot more complicated, and it takes a lot longer. It's not unusual for Nova Scotia Supreme Court cases to take two years. And that's on the short side. So instead of getting a hearing within a couple months, getting a decision within 60 days, we're talking years now. The rules that govern cases in the Nova Scotia Supreme Court are called the Civil Procedure Rules. They're available online on the Nova Scotia Court website. And when you click, if you click on the interactive side, which is the right side, you'll get a rule by rule, where you can try to figure out from the table of contents which rule applies to your situation and which one you want to look at, then click through and you'll see it. If you click on the left-hand side, what you'll get is all of the rules together, which is good if you want to print them. You probably don't want to print them, but much harder to find what you need. Now the rules were rewritten in 2008 to make them more accessible to self-represented litigants. And they did not a bad job considering what they looked like before, but they're still pretty complicated. So each Nova Scotia Supreme Court and Court of Appeal have written material in online and booklet form, setting out the steps that you need to take in order to file a case in that court and move it forward. Now we could spend weeks, and in fact I spent a whole year with my civil procedure students talking about that very thing, how to make a case in the Nova Scotia Supreme Court and move it forward. So all I have time to do tonight is highlight for you two things in the rules that might be useful for self-represented litigants. We're getting ahead of ourselves for family cases. And those are applications in court and actions under $100,000. So applications in court first, you'll see I've listed the rule at Civil Procedure Rule 5, and this is a special type of hearing that's useful for situations where the facts are known, or nearly all known, and they're not seriously disputed. So in an application in court, instead of hearing from witnesses, each of the sides and their witnesses will file written sworn statements called affidavits. If the other side has questions, the people can be cross-examined on their affidavits. They can make legal arguments in front of the judge, and the judge will hear them and decide. So remember how we were talking about two years or more. Applications in court can be decided relatively quickly in less than a year. So as long as you don't have a super-duper factual dispute, this is an option that you might be able to consider. If you need the full meal deal of a trial because the facts are contested and your matter is worth less than $100,000, there are special simplified rules to use in those cases. And those are found in Rules 57 and 58. And again, they're designed to make the process faster. The other thing I want to tell you about is summary judgment. Now, if the other side has made a claim or a defense that has no merit, summary judgment is a rule that allows you to knock out the claim or the defense and get the court to make a decision without the need of going all the way to trial. And an example would be, let's say somebody sued me tonight because I'm wearing a purple blouse. And they said, that's outrageous. It's illegal. And she should never be allowed to wear a purple blouse. In that case, there's no legal claim for that, right? You can't sue somebody for that. Do I have to go through the legal system for three years and have a trial over whether or not I was wearing a purple blouse tonight? I shouldn't have to, right? Summary judgment is designed to get rid of cases like that right off the bat. The other thing summary judgment can do is let's say that you deliver a truckload of widgets to your client, 50,000 widgets, and your client owes you money. You'd agreed on a price, you have a written contract for the widgets. Let's say they're a buck of widgets, so you're owed $50,000 and they don't pay. So you file a lawsuit. Does that need to wait three years to go through the system and all of this stuff? Well, maybe it doesn't. If you can prove that you delivered the widgets, then you can apply for what's called summary judgment on the evidence. And if they can't prove that they paid, chances are the court may give you a judgment right there and then without the need of going through all of the other processes. So that's summary judgment. Now, if you are a litigant and you are on the receiving end of a summary judgment motion because either the plaintiff or the defendant can make one of these motions and they are represented by a lawyer. So you're on the receiving end of a summary judgment motion from a lawyer. You need to lawyer up to a study from Canada's national self-represented litigant project found that when lawyers apply for summary judgment to dismiss a self-represented litigants claim, they were successful 95% of the time. Now, I'm guessing it's probably a little bit less in Nova Scotia because our summary judgment process is different than the process, say, in Ontario. But that would be five alarm bells time to think about getting a lawyer to. Okay, so some of you are here tonight saying, I had a family case. I'm not making it. I don't have a lawsuit. So let's talk a little bit about family cases too. If you live here in HRM or in Cape Breton, you are in luck. There's one court. It's called the Nova Scotia Supreme Court Family Division and that's the place you go. It offers what I tell my family law students is one stop shopping for all your family law needs. And the federal government has just announced, this is a huge deal, they've just announced that they're going to roll out the family division throughout Nova Scotia over the next couple of years. And this is fantastic and you'll know why in a second when I tell you what happens outside the family division's attachment area. So we've been waiting for this. The family division started in 1997 as a pilot project and the idea was it was going to roll out across the province within a year or two. So for 21 years later, and we're just now getting word. So I'll tell you what happens if you have a case that's outside the attachment area. If you live outside those areas, you have to go to two different courts probably to get all of your family law needs resolved. If you are getting a divorce, you need to go to the Nova Scotia Supreme Court. They'll deal with the divorce, the division of property, they'll deal with custody and access of any kids, and you still get the one stop shopping. The problem is for people who aren't getting a divorce. Common law partners, people who are never married, people who never had a relationship, maybe they're co-parenting a child. Those folks have a problem. They have to go to the Supreme Court to get the property divided to get exclusive possession of the family home. They have to go to the family court, another court, different court, different location to deal with custody and access of their kids, to deal with support, and in child protection cases. So two different courts. A lot of families are split having matters in both courts going on at the same time, which is really complicated. So let's move on and we'll talk a little bit about defending claims. So for people making claims, I talked about how important it is to pay attention to limitation periods and deadlines. This is the same thing in reverse. So if you were served with papers saying that someone has made a legal claim against you, happily the papers will give you a deadline to respond. It's the same deadline for everyone. It's on the court form, so it's not that the other side has made this up. If it's on legal documents, like a notice, what's called a notice of action or a statement of claim. If it's on the notice of action, it'll tell you. You have 15, 30, or 45 days to respond. And in Nova Scotia, those are clear business days under the civil procedure rules. So 15 days is about three weeks. And the thing to do is not ignore them. You're probably not going to be happy about being sued. You're probably going to want to stuff those papers in a drawer and not think about them again for a while, but you have to deal with them. If you don't respond within the deadline, the other side can get an order against you without having the court hear from you. And can that be set aside? Yeah, in certain circumstances, but don't count on it. So when you get served with papers, you have to deal with them. So we've made a claim, or we've defended a claim now. How do we take those cases through the court process? Let's talk about that. I've called this the paper chase, and this is an allusion to a 1970s movie. Has anybody seen the paper chase? It's a famous movie here, Law Students, and it's the account of Scott Turrow, the writer. He's a lawyer, and it's the account of his first year at Harvard Law School. So we wrote a book about that called The Paper Chase, which became a movie. And that's what we're going to do. We're going to talk a little bit about the paper chase that goes on in making and defending civil claims. So the very first tip is start organized and stay organized. So when you're making a claim or you're defending one, you need to get yourself a big accordion folder. Get them at office supply stores. Get some legal-sized files, because a lot of the documents are going to be those 8 1⁄2 by 14 kind. Buy a bunch of folders and label them right off the top. And as you get documents, you just flip them into the right folder. Oldest on the bottom, newest on the top. I suggest you put rubber bands around them, or use lawyers and law firms use clips. They'll hole punch the things and stick them in so that they do a tang kind of thing so that they don't get messed up or don't fall out of the folder and get all out of order. So whatever works, a rubber band works just as well too. And every time you get a document, if it doesn't fit in any of your folders, make a new folder. And then start a file for that kind of document too. So I've given you some possible headings that you could use on the documents. I also suggest you get a notebook and write down, all in one place, in the notebook the legal information that you get from court staff, advice from any lawyers that you talk to and anything the judge suggests that you do. So you have one notebook where you have all this information. Now probably you will have a bunch of original documents as well. If you need to jot notes, don't use the original documents for that. Make a copy and jot the notes on the copy. Why? It's because if your hearing goes to trial, you're going to need to file a document with the court. And if you've got a wrongful dismissal case and on your dismissal letter you've written Jackass beside your boss's name. This has really happened to me. I'm not making this up. I had a client who did that. It's going to get really embarrassing. So don't do that. Don't write on the original documents. Okay. So now you've got your folder set up. You're organized. You're ready to go. Next step is to gather documents and witnesses. Facts are really important. And so what you want to do, especially for the kind of case where the facts are ongoing, like in a family case involving access disputes, like in a personal injury claim, sometimes you have a situation where the thing happens. It's done. And the whole point is to get down your recollection of what happened as soon as possible. If it's an ongoing thing where there's new facts developing, you want to make sure you get all of those down too. So keep a running account of the relevant events and do it as soon as possible after the event. You'll be surprised if you even let a weekend go by or you go to bed and you say, oh, I'll do that in the morning. You're going to lose some detail. And the detail may be the thing that allows you to win your case down the road. If you keep a good accurate record when your memory is still fresh, then two years from now when you go to trial, you can refresh your memory with it and you'll have it all going on. Think about who else has relevant information. And this is your potential witness list. What else can you think of who has relevant information about the case? These are the people that you can go talk to, see what they know, see if they're willing to come and testify. If they're not, there's things called subpoenas. Although you want to be careful about that because unhappily subpoenaed people often don't tell you, tell the court what you want them to hear. So you've got your list of potential witnesses. Then you have to think about paperwork and documents. When lawyers use the word documents, we were using it very broadly to mean things like they could include photos, diagrams, plans, all kinds of things. So think about what documents are relevant and then gather them up. This is usually a very time-consuming process. Don't underestimate how much time that's going to take. And I want to mention, because when I'm in court, one of the things I see over and over again is people who are before the court is self-represented litigants think that the judge will go out and do this legwork for them. The judge cannot. She has to make her decision based on the four corners of the evidence that she hears from the parties. So the only things the judge can consider are things that the parties put before her. It's actually what's called a reversible error. If the judge goes out and does her own investigation. Now, she can look at legal cases. That's a little bit different, but she's not supposed to go and do internet research and find out, well, is this really how you're supposed to construct a room for what's the best thing to do in an access case where there's been domestic violence. They have to decide based on the evidence that they hear. So don't expect the judge to do any of that. They can't check other government files. So sometimes you'll hear say, well, I have a perfect driving record. You can check. The judge can't check. She won't check. If you have a perfect driving record and that's somehow relevant to your case, then you need to bring your driver abstract or find a way to bring the evidence before the court. Now, same thing with witnesses. Witnesses can only testify about what they personally observed and remember. They usually cannot testify about things other people told them unless it was something said by one of the parties to the lawsuit. Testifying about something that happened outside of court is called hearsay. There's a bunch of complicated rules around hearsay. Question? Yeah, I was just wondering, because from time to time, I mean, that is part of your testimony, is that you're saying? And then this person came to me and said this. And of course, you react or you act on basis of that. And so this is where I'm clear what is that hearsay? And you're saying how they told you. Can you be using it as, well, this was my experience that this person came to tell me this and then this person said that can you do it in that way? Focusing on this was your experience. It depends. So what makes something hearsay is that the classic definition is an out of court statement that's offered for the truth of its contents. And so what, let me think of an example. And that of court statement might be a pizza last night for dinner as it turns out. I think you had pizza last night for dinner. If somehow that's relevant. And I've told you that you could testify and say, well, Cynthia said she had pizza last night for dinner. Now if the issue that the judge has to decide is whether or not I had pizza for dinner, that's hearsay. And the judge can't consider it, except for me who had the pizza and can talk about what happened. But if it's just part of the narrative or you're offering it for another reason to kind of explain the history of things and it's not an issue, but whether I had pizza for dinner or not, then that's an exception. And the judge normally will hear something like that. But it's very complicated. They spend several classes in evidence. Law students studying hearsay exceptions and they all get worked up about it every year because it's such a complex area. The general rule is you want to hear things from the horse's mouth. The judge wants to hear it from the person who saw it, the person who said it, the person who observed it. One of the other big exceptions is that if you're saying something that the person that you're suing or suing you said, that's also an exception to the hearsay rule because they're there and they can contradict it if they want. Doctoral checking. Talked about that. Okay, yes. So let's move on. That's gathering your documents and your witnesses. Disclosure and discovery. So most civil and family cases have a disclosure and discovery stage. We spend a month on disclosure and discovery in civil procedure class and we have a guest judge who comes in and who tells the law students this is where all the money gets spent. So if you have legal representation, it's a very time intensive process for your lawyer to do this. So what's happening? Well, the rule is that in civil and family cases, both sides are required to disclose all of their relevant evidence before trial with only a few exceptions. So in civil cases, you start with documents. You disclose to each other all of the relevant documents. And then in Nova Scotia Supreme Court cases, you may end up in a boardroom somewhere questioning the other side under oath or being questioned under oath. That's called discovery. Now in family cases, that's a little bit different. Typically, you'll complete a series of court forms relevant to the kind of case with the kind of claims that are being made in your case. So if it's a property division, you'll complete something called a state-led property where you list everything you own and everything you owe and you swear it or affirm it at the bottom or a parenting statement if it's access or custody that's at stake. Plus, you'll prepare one or more affidavits. And as I mentioned, affidavits are sworn written statements saying basically the same things you would say if you were testifying. Okay, yes, question. What is considered a relevant topic? For example, if you have a witness, do you have to get the witness's statement in the form of the affidavit and then send a relevant document or is it legal documents and papers? They mean legal documents and papers. So the definition of relevance and students spend a class review on this and evidence as well is something that makes one of the facts an issue more or less likely. So a relevant document is one that bears on one of the issues that the judge has to decide. It doesn't bear on anything that the judge has to decide. It's not relevant. But affidavits would be considered court documents as opposed to relevant documents. So they do have to be exchanged because the other side needs to know what the witness is going to say and have a chance to ask them questions. But that would be through the disclosure process just not as documents. Does that make sense? Yeah. All right, so what about small claims court? There are no small claims court rules. The civil procedure rules, I carry them around to civil procedure class of this thick and we don't even include all the rules in the version that we have made for students, the student addition. Small claims court has no rules. It's the wild west of the civil litigation system. And there is no rule requiring you to exchange relevant information with the other side but it's still probably a good idea. Why? I'll show you yours if you show me mine. Or I'll show you mine if you show me yours. The reason is that when you get to court, the adjudicator is concerned with the hearing being fair. So if you ambush the other side with a whole bunch of relevant evidence, they're going to say, I didn't know any of this. I need time to think about how I'm going to respond. And the adjudicator is going to give them time and adjourn your case over to another night. If you actually want your trial to happen the first time you go, it's a good idea. Now, I would still exact a quid pro quo. I would probably say, hey, I'm willing to show, I'll tell you who my witnesses will be and roughly what they're going to say and I'll show you my documents. If you're willing to do the same for me, what do you say? And if they won't, maybe you try ambush and see what happens and maybe the case gets put over. Probably would because somebody's going to get surprised and need time and it's only fair to give them time to respond of up to $25,000 is at stake. But there's no official rule saying you have to do that. Now, one of the things that will come up for you, hopefully earlier in the process than later, should you try to settle? And so the question I have for you is what do you think, what percentage of lawsuits that are filed? So these aren't people who just made claims. These are people who actually go to the courts and file a lawsuit. What percentage of those are ultimately settled before trial? Small lender? Okay. So when a hazard, you have a percentage in mind? Okay. 30. Anybody have a different percentage they want to throw in? 60% settle. 97% settle. Yeah. Because they're so dang expensive. 97% settle. So the answer to the question, should you try to settle is almost always yes. And the answer to when should you try to settle is almost always as soon as possible. And a short example, if you file a lawsuit seeking $50,000 in May 2019 and you settle the case for $40,000 in July 2019, you might be satisfied. You're down $10,000, tuition in the School of Life, we'll call it, you got $40,000. And because you settled, you actually got the money. If you go to trial, and you settle the day before the trial, as so many people do for the same $40,000, but now it's two years later, you're going to be a lot less satisfied, right? And if you get a judgment for the full $50,000, and then you find out that the person you sued has no assets, no job, and no money, you're going to be even less satisfied. All right, so why should you try to settle? I mentioned settling for $40,000, when your case is worth $50,000, and you agree to settle for less than your case is worth. Well, you're fine. I'm going to argue that there's four excellent reasons why you should settle for less than your case is worth it. It's funny, I just taught this in civil procedure class, and one of the things we talk about with the students is, settling has a pejorative connotation, doesn't it? We think of ourselves as heroes in our own story. Heroes don't settle, they go and prevail against insurmountable odds, isn't that what heroes do? They don't settle. So why am I telling you to settle? Or think about settling. Here are my four excellent reasons for you to consider. Number one, court outcomes are uncertain. And for those of you with science backgrounds, you're probably thinking, okay, these are reproducible results. No, they're not actually reproducible results. And I'll give you a quick example. I used to train law graduates on Nova Scotia's bar admission course, and one of the things we asked them to do was a mock trial so they could get some practice doing a trial in a safe environment. So I created a fact situation that was balanced. They made some good points for the plaintiff, the person bringing the claim, some good points for the defendant, the person being sued. And the only difference was the identity of the lawyer, or the law student doing the case, and the identity of the judge. Otherwise, the facts were identical. The law was identical every single time. I ran this case 30 times, and I got every conceivable outcome from 100% for the plaintiff to 100% for the defendant, and everything in between. They are not scientifically reproducible results. And you think, how could that be? The facts are the same, the law is the same, the result should be the same. And the reason, maybe some of it had to do a little bit with the skill of the law student who made the case. Some of it probably had to do with a particular judge. You heard the case. But just because the results were different doesn't mean that one of those results was right and the rest of them were wrong. And that can be hard to get your head around, but the reason is judges have to apply the law. All of these judges did apply the law. But where the law doesn't produce a clear answer, the judge has to call it like they see it. And that's that calling it like they see it that creates the uncertainty. And so lawyers will tell you, court outcomes are always uncertain. Maybe more or less uncertain, but they're always uncertain. Nobody has such a slam dunk of a case that they're guaranteed a victory. Witnesses can die on the way to court, things can happen, the law can change. And we don't know who the judge will be. We don't know how the witnesses are going to do. We don't know a whole bunch of different variables. So settling gives you certainty. You know what the outcome will be and you had some agency in creating it. Another big benefit is you know you're going to get the money. Typically, if you settle the settlement includes a term that the other side doesn't pay up, you're going to continue the lawsuit. And so for this reason with most settlements, you may not see everything you're looking for, but you'll probably see the amount of money that you agreed on at least. Yes, question. How does this apply to insurance similar to the banal law? How in terms of settling? In terms of settling like a compromise claim, the uncertainty of outcome is I would say as much or more in family law than any area of law because there's so much discretion given to judges when we talk about what's in the best interest of a child, for example. So that would apply. Knowing you'll get the money is a little bit different. It kind of depends because if you own joint property, you can have a little bit of certainty that the worst case scenario is the judge is going to order it sold and the proceeds divided, right? So you're not as worried about can I collect from this person perhaps. But you should still consider a compromise claim because you might not get everything you want because things are uncertain, right? Maybe you've got a great case on this point, not so good a case on this point, and you're going to decide, well, I'll give a little bit on this and I'll get on that and I feel like it's fair. The next one is you avoid the risk of having to pay some of the other side's legal costs. So this was the legal cost point. And we've already talked about that. Now in family cases, you might get ordered to pay costs. The only place you won't get ordered to pay costs is in the Blessed Small Claims Court. And another reason to think about settling is you avoid the additional harm to the relationship that comes from litigation. Litigation is notoriously top on relationships. Family litigation in particular, but any litigation where you still have to have a working relationship with the person on the other side, it can be labor and employment, it can be estates, it can be family. Litigation is going to hurt the relationship. Settling maybe will be a little more gentle on it and I'll give you some tips for how to make it even more gentle than just simply settling. Now maybe you don't care, maybe the other side is an insurance company, you're never going to deal with them again, and off you go to the races. But if relationships matter, this can be another reason to think about settling. Okay. So how do we settle? I want to talk about two things. I want to talk about negotiation and I want to talk about mediation. Negotiation first. We negotiate all the time, do you want to know how lawyers negotiate? Yeah? Okay, I'm going to tell you some secrets of how lawyers negotiate. Get your hands on this book. It's called Getting to Yes by three Harvard law professors called Fisher, Uri and Patton. They wrote it and published it in 1981 and it revolutionized the way that people negotiated. It's available in the library if you want to get your own copy. It's only 20 bucks. It's available in those bookstores and it's in a multi-edition. What Fisher, Uri and Patton did was they set out what they called principal negotiation techniques that apply in every kind of negotiation, including legal ones. And so here's what they said would help you get to yes. So their first point is to separate the people from the problem and what they mean by that is criticizing and blaming is counterproductive. Come to the table with a focus on solving the problem together. The second tip that they have is to focus on each side's interests and their needs, not their positions. So a position is what somebody says that they want. They might say, I won't settle for less than $50,000. And then the question becomes, why? Why do you need $50,000? It turns out the answer is they want to put it down and payment on a house. If you understand the why, that's the interest. The interest of the person is they want to have enough money to put a down payment on a house. The position is I want $50,000. If you understand why a person is seeking a particular result, it can be a very effective tool. So Fisher, Urie, and Patton use an example of two kids who were arguing over an orange. Both of them wanted the orange and they ended up cutting the orange in half and each of them took half of it and neither of them was totally satisfied with that. But it turned out because they hadn't discussed why they wanted the orange. One of them wanted a snack and the other one wanted to use the peel for baking. And if they'd only thought about what their interests were, each of them could have had all of what they wanted, not just half. And you might say, well, that's all fine, but what if I say, what are your interests? And the other person says, piss off. The answer to that, Fisher and Urie say, is to ask why not and suggest something. So let's take our 50,000 person. Why do you need 50,000? Let's say, I'm not telling you that. You don't have any right to know that. You say, okay, well, why not 40,000? Let's say, because I need enough money to buy a house. Oftentimes asking why not and giving a suggestion will generate the same information you need, which is what is the person's interest. Next one, brainstorming. Now you may feel comfortable brainstorming with the person that you're suing. You may not. And if you don't, that's okay. The point is to do some brainstorming around a variety of options with no commitment. So if you happen to be brainstorming with the person you're having the dispute with, nobody's making an offer to do something. We're just throwing out ideas and seeing if we can come up with something creative, like one person takes the whole peel, one person takes the whole orange. The next tool is, if none of these things work and you end up furthering into the negotiation, one of the tools that's very, very effective and persuasive is the idea of using objective standards. So objective standards can help you convince your opponent that what you're suggesting is fair. And they can come from things like market value, professional opinions, from science, even from case law. Well, the last time there was a personal injury case where someone had a minor whiplash. They got this much. I think I should be entitled to roughly the same. Or another objective standard would be, you've just wrecked my car and my car was worth $20,000. Look, here's a Kijiji ad. Turns out 2013 round fours go for about $20,000. Sometimes the objective standard can come from a judge who gives their opinion at a settlement conference. They'll say, well, if I was deciding this case, this is what I would do. And, of course, that judge won't be your trial judge. That's the whole point of having them be the settlement judge is you'll get an independent view that you can then do with what you will. But it'll help. And then the other thing that Fisher and Yuri ask you to do is know your batna. And they say a batna is your best alternative to a negotiated agreement. It's your self-help remedy. It's what can you do if the other side won't play ball? Or if you don't find it enough common ground to make a deal. Your batna might be suing. Or maybe if you can't afford suing, what's in your back pocket is maybe we can mediate. Maybe I'll have to lump it. Maybe I'll represent myself. So it's whatever you have to do if there is no deal. Think about that going in. Any questions about that? Let's talk about mediation. Probably most of you know what mediation is. It's someone who's neutral. In other words, no acts to grind with other side. It has no decision-making authority. Helps you negotiate in the principled way that I just discussed. So mediation, it's voluntary in Nova Scotia. It's private. You don't have to share your business with anyone other than the mediator. The mediator won't make a decision. It's up to you. Mediation, like principle negotiation, does wonders for preserving relationships because people have agency. They don't have things happening to them. They are together sitting down, working on a problem together and coming to a solution. It gives you some control over the outcome. It's not some judge who's never met you or your family deciding who's going to have custody of your child. And it's often quicker and cheaper than going to court. So yes, you have to pay a mediator. Usually the rates are 150 bucks an hour. Give or take these days. But if you can settle a case with three mediation sessions, it's a lot cheaper than taking a case through the courts for years or having a lawyer for the whole thing. So what are the cons? That sounds like it's all pretty magical. There are some in addition to the fact that it costs money. If it doesn't work, you're back where you started. You still have to potentially go to court. It's not a regulated profession. Anybody can hang out a shingle as a mediator. So you want to get a referral to someone who's experienced and knows their stuff. And it's not appropriate in every case. Typically the kinds of cases where you shouldn't think about mediation are cases where there's a big power imbalance. Domestic violence cases come to mind. Or cases where you just don't feel like you can advocate for your own interests that way. Now I used to practice family law and I saw mediation do miracles. I once had a case with two parents. I was on for the mum. They hated each other. Absolutely hated each other. They couldn't even be in the same room together. And yet they had a son and they were trying to figure out how to co-parent their little guy when they couldn't even be in the same room together. So they said, well, we want to try mediation. I thought, okay. Good luck with that. Of course, I didn't express that at the time. I said, all right, you can try. And you know what? After three or four mediation sessions, they came to a workable parenting agreement that they could both live with, that they both had control over, and they could stick to. They still don't like each other. I'm sure they still hate each other's guts. But they found a co-parenting relationship that worked for them and it was mediation that helped them get there. So my take on mediation, I would consider it in every case where it's not contraindicated. And if the other side will agree to do it. I think the problem is that is the power balance and the male-female relationship. There's a, here is a big problem because for women, women tend to be the ones who give in and try to make a compromise. And they lose a lot. And that's why that they, you know, after so many years that they've watched this in action, that they seem that they tend to walk away. And I've seen it in, you know, case after case, where women just say, forget it. You know, they're not up to the doubt and they don't want a confrontation. I agree. And those are exactly the cases where mediation is contraindicated. So this is a process where I would say if it's not contraindicated for you and your situation, give it a try. But if it is, if you don't feel that you can advocate for yourself, if there's a big power imbalance, if there's been domestic violence, I used to, absolutely. It's not, it's just not the right tool for the job. Also, I feel how you deal with settling and when there's no trust between the non-person doesn't disclose information, for example, or that they're constantly trying to reduce it by hiding things and everything and how you settle with somebody. That's an excellent point. So one of the other kinds of cases that's contraindicated for mediation is where one side is not genuinely invested in the process and genuinely wanting to reach agreement. If, yeah, then it's not going to work if you're just throwing money at something that's not going to produce a result. But if you have people and two people or you can be multi-party mediation and everybody at the table wants to be there, wants to work together, wants to find a solution to the problem, that's when mediation works. Okay, so two ground rules. Before you negotiate or mediate, you should have legal advice first so you go in understanding your rights and obligations. Lawyers sometimes get reputations for being deal breakers because people will go and they'll work really hard and they'll come to a mediated agreement and then they'll take it to the lawyer and the lawyer will say, oh, you know, you didn't think of this, that and the other thing or this isn't workable, this isn't what the law provides. So understand your rights and obligations first and then negotiate. You'll negotiate from a stronger position if you do. Second point. I think everybody should consider making it a ground rule that any settlement you come to, whether you're negotiating or mediating, is conditional on both sides having the opportunity to get legal advice about it and if it still looks like a good deal, then go ahead. So think about this for a sec. It can be an incredibly pressured environment, right? If anybody's been in one of these negotiations or mediation, sometimes a judicial settlement conference and the pressure is on, you have to decide, made me think when I was practicing of when we bought our house, it was back in the days when the Halifax market was really hot and it was one of those kinds of markets where you had to go see the house and if you wanted it, you had to put an offer in that night or you were not going to get the house, it was going to go and that was not the way that I wanted to make decisions. I liked sleeping on decisions. I liked thinking carefully about decisions and yet the environment wouldn't let me do that. So if you have control over your environment, try to create an environment that takes that kind of pressure off because my view when I was practicing family law is if it looks like a good deal today and it looks like a good deal tomorrow, let's do it. If it doesn't look like a good deal tomorrow, then it probably wasn't going to stick anyway. Okay, so preparing for trial, what should you be thinking about? What should you be doing? Well, you're going to take up that notebook I talked about, write down all the points you want to make when you testify. What are the things that you need the judge to know? Then take some time. I want to go back and talk about the notes a little bit more. Probably wouldn't use your notebook, we have everything else. And the reason for that is that in some cases, if you bring your notes to the witness stand with you and you need them to refresh your memory, the other side gets to look at them. So the last thing you want is your little book that you've been keeping all the way through going off to the other side to read. So maybe make the notes on a separate piece of paper. But witnesses are generally expected to testify from memory. So you've got this running list of everything that's happened, you've made shortly after the time. You can refresh your memory before you go up there. The judge is probably going to ask you to, as best you can, tell them about your situation from memory. But if you've forgotten and you need the notes to refresh your memory or you want to look at them at the end to make sure you covered everything, typically you could ask, and the judge may let you do that. The only catch is if you do that during your testimony, you may have to show the notes to the other side. Think about how you're going to prove every fact. This is something lawyers spend a lot of time doing and self-represented litigants should too. So you prove facts by calling witnesses or by giving evidence yourself. You can prove a fact by asking questions of the other side or their witnesses. You can introduce documents, and I use the term broadly to include everything from photographs, plans, diagrams, all of those kinds of things. So you want to think about what do I need to prove? You want to think about is this fact likely to be contested by the other side? And if it is, then think about ways you can corroborate the fact. So let's take a simple example. I had my house painted last summer. And let's say the contractor says that he painted my house and I did not pay. And the price was $3,000. So he's going to sue me. I say I did pay the bill. So we could go to court and he could say I painted her house, she didn't pay, she owes me $3,000. I could say I did so pay. And the judge is left saying, who do I believe? My case is going to be so much stronger if I bring to court a copy of my canceled check that I gave to the contractor. And I say I did so pay. Here's a copy of the canceled check that he cashed. It makes a difference, right? What happens if I made it a cash deal? Think of ways to corroborate it. Maybe I withdrew $3,000 from my bank account the very day that the job finished. So I don't have a receipt from him. I don't have a canceled check, but I could show I withdrew $3,000, which was the exact amount of the contract price on the very day that it ended. That also supports my story that I did so pay. I was reading a family law decision very recently in which a dad was seeking expanded access to his child. The mom opposed it on the basis that the dad was very verbally abusive to her. And she could say he's very verbally abusive to me, and that goes somewhere. But she had a recording that she made in the car. A little guy in the back seat of him going off on her and being verbally abusive. And now there's just different rules about family cases and when you can record. So I'm not sending you out there to encourage you to record one-sided conversations like Jody Wilson-Ribble or anything like that because there are special rules around it. But in this particular case, the judge heard this guy completely going off on her and shouting and calling her names and the child's in the back seat. And she said, absolutely, we have to restrict his contact because if he's going to talk with her, he's going to do this in front of the child and that's a problem for the child. And so that evidence was incredibly powerful because it corroborated what she was saying. So let's talk about expert witnesses for a second. What's an expert? Do I need an expert? An expert is just in law, somebody who knows more than the average bear about something. And once you prove that your expert knows more than the average person about something, they get to testify about their opinions. So an expert doesn't have to be a medical doctor or a rocket scientist. An expert can be your car mechanic, your contractor. So do you need a contractor to explain why your new deck collapsed or a mechanic to give an estimate on the cost of fixing your car? Those are experts. Do you need an actuary to tell the court what your pension is worth in your divorce? So in small claims court, the best way to find an expert is to find someone with the expertise that you need and ask them to put their opinion in writing. Share that opinion with the other side well before trial. And then bring the expert to court to answer questions. Now, of course, you're going to need to pay that person for their time, probably at whatever their usual rate is. But they can help your case by giving the court the needed information that they wouldn't otherwise have. Now, there are rules about experts in the Nova Scotia Supreme Court as well, but they're much, much more complicated and too complicated to get into tonight here. You think, well, can I just find something on the internet and print it and bring it and the judge will consider it? Wouldn't that be so much easier? And the short answer is the judge probably won't and can't consider it for a couple of reasons. One is fairness. The other side has no opportunity to question something that you printed off from the internet. And secondly, unknown reliability, right? If there's a mechanic from the local garage who comes and says, I looked at Cynthia's car, it needs a break job, and that's going to cost this much money. And then the other side can ask the mechanic questions. That's different. But if I just print off something I find on the internet about when cars need break jobs, the judge is not going to look at that. Now, judges do consider internet information in certain very limited circumstances. One of them is Google Maps, right? More and more in traffic court, judges are seeing Google Maps as an emerging area. Getting your documents ready. Okay, so the court is going to need multiple copies of everything. So you need to bring the original, plus at least three copies of every document or photo you want the judge to consider. Why? That sounds like a lot of trees. Okay, so the original is going to get marked as an exhibit and stay in the court file until the case is done. One copy is for you. One copy is for the other side. One copy is for the judge to follow along with. If you have a video or audio recording you want the judge to consider, you need to bring it on a DVD or a USB drive, something that can stay with the court in the file. You can't show the judge videos on your phone or on your computer. Best case scenarios, they'd have to keep your phone for weeks or months until the court has decided. So take the time and the effort to put that on a USB, put it on a DVD. And if you think you're going to need AV equipment, most courtrooms have it, but it's not bad to call ahead and say, hey, I have a video I want to play. Will my courtroom have AV equipment on the day of my hearing? To make sure that you get to use the material that you've created. Now, there are really complex rules of evidence around what documents judges are allowed to consider and plan and how. And judges do sometimes relax these rules in civil cases, but you can't count on them to relax the rules. If something is really important to your case, you need to make sure that you present it in a way that the judge can consider it. And most of the complicated rules of evidence boil down to two things, fairness and reliability. So even if you don't know the rules of evidence, law students spend about 100 hours in evidence class learning the rules of evidence. Thinking about fairness and reliability will take you a long way to navigating these points. Last couple of things, what do you want the court to do? So you have to go in knowing what you want to ask for and be ready with the reasons why you think the court should give it to you. Why fairness or justice supports the outcome that you're seeking. And finally, watch a real trial, not a trial on TV because that's not what real trials look like. Go down to the court that's going to hear your case, type of court, small claims court, supreme court, family division, family court, and sit in, if you can, on a trial or two. You don't have to sit in on the whole thing. Just sit in long enough to get a feel for what the experience is like when it's not your life and your situation at stake. Now you might get asked by the sheriff why you're there, right? They want to know that you're a self-represented litigant who wants to observe court because you have a case coming up. They want to know you're not a homicidal ex-boyfriend or girlfriend of one of the parties. And that's fair ball. That's their job to keep things safe in the court. So if you get asked, that's not to deter you from doing and it's because they're doing their jobs. Okay. Quickly, what to expect when you go to court? And I'm going to skim through this because I see we're running a little bit short on time. This is an actual Nova Scotia courtroom. You see the Nova Scotia flag there at the back. All courtrooms are set up a little bit differently, but they have the same features in them. So you can see there's a front table. The front table is for the person making the case. The second table is for the person responding to it. The judge said it's at the raised bench. In this one, it's got a red chair. The court clerk sits below. The microphones are there to record everything that everybody says so that if there's an appeal, there can be a transcript created of what everybody said. Now, if your courtroom's not set up like this, if it's set with benches on both sides, as you come in, the person who's making the case typically sits on the left side facing the judge. The person is responding on the right side, but don't get too worked up about that. The judge is not going to mind if you sit in the wrong seat. And if you want to think about it, you can ask the sheriff or ask the court clerk, which side do I sit on? And they'll tell you. I have a slide for what to call everybody. You've got that all, so I'm not going to go over this. What to bring? And most of this we've already talked about. Leaving everything with the court. So everything that gets admitted to your case as an exhibit is going to have to stay with the court until the case is done. And all of the appeal periods are expired or the appeal has been heard and decided. It means you can get it back if you want to, but you're going to have it with the court for quite a while. And they won't volunteer to give it back to you. If you want it back at the end of the case, you've got to go and say, can I have my exhibits back? And they'll give it back to you. Court remedicate, I'm going to skip over as well. It's pretty self-explanatory. I'm a big fan of knowing the norms of court remedicate. I really urge my students to learn them and use them. The reason is it'll make you more comfortable. And you can focus on the merits of your case, am I sitting in the right place? Am I calling the judge the right thing? You can think about how you want to make a case instead. Okay. Examining witnesses. So your trial has begun. This is what judges want to know from witnesses. They want witnesses who will give them facts, who will help them decide. And they want to know, can I rely on what this witness says? And relying on what the witness says is much broader than just are they telling the truth? People can be honest but mistaken. Maybe they didn't have a great opportunity to observe. Maybe they have a terrible memory. And so the judge is going to be looking and listening very carefully to find out if this is a witness whose evidence they can rely on. All right. So you have to examine a witness. In family cases, maybe the witness is provided an affidavit. You don't have to do this. But in civil trials and small claims court, you're going to have to do it. So when you're asking questions of your witnesses, the rule is you ask open-ended questions that don't suggest the answer. So I've given you some example questions there. Really open. What happened next? What did you see? What did you do? And it will go on like that. Now, when the other side gets the question of your witnesses, they get to do something called cross-examination. And you get to ask cross-examination questions of the other side's witnesses. So what I put first here is tips for when you are being cross-examined. And one of the things I'll say is people are really scared about cross-examination. They say, I know cross-examination. That was when Jack Nicholson told Tom Cruise, you can't handle the truth. And everything dissolved from there, right? Cross-examination. The reality of cross-examination is if you are telling the truth and you're not gilding the lily and you're doing your very best to tell the truth, as you know it, you have very little of fear from cross-examination. And if you go in with that mindset, you will be fine. All right. What about you doing the cross-examination? Cross-examining. This terrifies new lawyers. They spend years learning their cross-examination skills. There are two reasons to cross-examine a witness. One is if they've said something and you don't agree with it, you want to challenge it. The other one is if maybe you agree with everything they said, but they know additional things about the case that are helpful to your side and you want to bring them out. Those are the two reasons to cross-examine a witness. If not, those apply. Maybe you don't need to cross-examine the witness. And maybe you should think about not doing it because if you do ask them questions, you could get stuck with whatever it is that they say. That's why there's an old software lawyer saying, never ask a question in cross-examination if you don't know the answer already. So the kinds of questions you ask in cross are completely different. They're not these open-ended, what did you do next kind of questions. They're leading. They suggest the answer. So I've given you some examples here. And typically they're yes-no questions. Now you'll hear lawyers cross-examining witnesses and they're broader than that, but that's a safe way to do cross-examination. So yes-no answers and little baby steps. So you see, I've kind of given you a hint of that in my slides. You asked me to meet with you on April 20th, 2018, didn't you? What we're getting at is a termination in a wrongful dismissal case, but I'm not going straight to that. I'm going to do one step at a time. And then when we met on April 20th, you told me if I didn't resign immediately, you were going to fire me. Maybe there'd be, for a lawyer doing that examination, maybe there'd be 10 questions in between those two. Just little baby steps. All right, let's talk about working with lawyers. How do you know if you need a lawyer? Here are five situations where you should seriously think about getting a lawyer. One is the stakes are high. Your life is really going to change depending on the outcome of the case. The middle three relate to your ability to act for yourself. So can you understand and follow the rules? Can you understand and follow the law? What if maybe you can do both of those things, but this thing makes you emotional every time you think about it? Or maybe the judge has said you should really get a lawyer. Do I still consider getting a lawyer? None of those situations apply to me. Yes, if you can afford a lawyer, you should think about getting a lawyer. Studies about legal representation show that people with lawyers tend to get better outcomes in court than people that represent themselves. I'll give you another stat. The results vary. One of the most conservative suggests that people who have lawyers are four to five times more likely to win than people who represent themselves. It increases the odds of success. So there's no guarantees. We already talked about that, but it increases your odds. What should you expect to pay? Well, most lawyers charge by the hour. Here in HRM, the average rate for a new lawyer is around $175 an hour. If you're looking for a senior lawyer with 20 or more years at the bar, it's closer to $350, which begs the question. Here's some slides about average costs. I'll just skip through these. They're a little bit old now. They're from 2015. The Canadian Lawyer Magazine does a survey every year on legal fees. They'll give you a sense of what lawyers reported was the average cost of certain things. There's some family stuff, some civil stuff. Look at that. A two-day civil trial, which is one of the shortest kinds of trials, which are short, 20,000 bucks for legal fees. So you might be thinking, oh boy, are there other ways to pay for a lawyer? And there absolutely are. You can make alternative payment arrangements. So going back to family cases, if there are assets, say there's a house and there's going to be an equalization payment, the parties have decided the house is going to be sold. You have money. You just don't have liquid cash. Some lawyers will agree to get paid at the end of the case. So they'll just keep their time and they'll send a bill at the end of the case. And when the equalization payment goes from one spouse to the other, the legal fees will come out at that point. Lawyers don't have to agree to that, but some of them will do that. Contingency fee agreements, most common in personal injury cases. These are the you don't win, you don't pay kinds of agreements. And there were rules around them. And class actions. Class actions are what we use. Lots of people have a very small claim that doesn't make sense to pursue, but together it does make sense. Now, I mentioned about fees. So the lawyer who's 20 years of experience is a lot more expensive, right? Maybe double the cost of the brand new lawyer. Is it worth it to pay more for an experienced lawyer? And the question, the answer rather is often yes. Senior lawyers will often be able to answer your question right up the top of their head without doing research. They can use their experience to resolve your case more quickly. And when you pay by the hour, quicker usually means cheaper. So I think the best strategy if you decided you do need a lawyer is to choose a law firm that has both senior and junior lawyers working in the area that you need. And then you ask if they work together. And so here's the thing, if the lawyer that you see thinks the case is straightforward, maybe the junior lawyer will take the lead, but they have access to the senior lawyer for advice if things get complicated. And the bonus to you is if the new lawyer is still learning, oftentimes that happens for free because it's part of the senior lawyer training the junior lawyer as much as it is part of your case. On the other hand, if the case is complicated, the senior lawyer takes the lead, but they can delegate down to the junior lawyer the kinds of tasks that really don't need to be done by someone with 20 years at the bar. So it's win-win for you either way. Finding and choosing a lawyer, I should tell you what my rule of 55 is. Okay, the rule of 55 is try to find a lawyer who does at least 50% the kind of law that you need and has at least five years of the bar. Why? Lots of people can take issue with that. They should say the tutor, your rule should be the rule of 32, the rule of 79. And the basic idea, though, is to choose a lawyer who does a lot of the type of work that you need and has done it enough that they've seen this case not the first, the second, or third time with your particular issue. They've done this before. You're trying to find somebody who can give you both of those things. For referrals, you can ask a friend or a family member, but the problem is with professional services it's hard for non-lawyers to evaluate the quality of the services you received. I know nothing about cars. If my mechanic's giving me terrible service, I don't know the difference. I hope my mechanic's not here. He's not here tonight. He's an honest guy, he's wonderful. Same thing with doctors, right? I don't know if my surgeon did a good job or not. So one of the things you can do to get a referral to a lawyer is call a law firm and ask for a referral to a lawyer. Say, I need a family lawyer. Can you recommend someone? Because most law firms and lawyers have a list of the people that they will send clients to. And you'll get somebody that they respect. Okay, lower cost options. I want to talk just very briefly about these, and I'm sorry I'm using up our question time. Summary advice is important. I want to talk about that. So your legal resources handout includes some ways to get summary advice. And what summary advice is, is a meeting with a lawyer where they can give you that coveted legal advice, typically low cost or free. And there are many, many sources where you can get this and a lot of them are in my handout. So it's a way to answer your questions like how do I have this video that I want to show? How can I get this in? Or I got a ticket for having no insurance, but I thought I had insurance. Do I have a defense? Or my spouse wants to take my kid and move away? What do I do? How do I file something in court to oppose that? So specific questions. Summary advice is really good for this. And I want to give you a couple of tips for how to make the most of summary advice. What you want to do is write out a summary of all of the relevant facts. Keep it to two pages. So like one double-sided page, eight and a half by 11, 500 words tops has to be concise. Make sure you include everything that you think is really important. You're not talking about here how you're going to prove it. Just talk about what you say the facts are. Include the bad facts as well as the good ones. Tell the lawyer what would represent a good outcome for you. Maybe even list the questions that you have for the lawyer in order of importance because you have a limited amount of time. So type it up or have it typed if you possibly can. And give it to the lawyer a few days in advance of your appointment. And then you're hoping if you have an hour you're going to get three or four of your questions answered and legal advice that you need on the most important priorities for you then. The other thing you should do is don't use this lawyer appointment to get legal information. Use free sources and low cost resources to find the legal information you need to understand the basics of child support, understand the basics of making a claim in small claims court so that you can go in with specific targeted questions for the lawyer. That's the way to maximize summary advice. The other option is can't afford a lawyer for the whole case. Think about limited scope retainers. And so this is retaining a lawyer to just do part of things. Maybe you can do most of the case yourself but you need a lawyer to help you with the affidavits or to tell you how to introduce your crucial DVD video. Maybe you just want a lawyer to do the cross examination because you're totally freaked out about that. Or maybe you want the lawyer to help you negotiate. Tell you what your legal rights and obligations are. You can get a limited scope retainer to just do the things that you need at lower cost. Now the only caveat to that is that the studies on limited scope retainers have not shown. You would think that this would be full representation, gives you a four or five times greater chance of getting the outcome that you want. You would say, well getting some representation probably gives you more of a leg up. The studies haven't been showing that. So that's my cautionary tale on that. They haven't shown that limited scope retainers are changing outcomes particularly. Now we get time for Q&A and I'm sorry I'm a little bit late but I would love to open the floor to your questions. Yes. Now I'm not going to go back to the first thing you mentioned. Anyway, how much information you can get. So when you're teaching your class I assume you can agree on the case studies. Yes. Am I correct that you can comment on cases. Yes. Give your opinion. Yes. Say I think they would mess things up and they should run for quarter. Absolutely. So what would be the difference then between that and how it would say like here. We would not be able to do that generally here. Two reasons. One is that when I'm giving legal commentary on a case that my students are learning about I'm not applying the law to a specific set of facts. I'm just discussing the law generally. I'm saying oh the Supreme Court of Canada got it wrong and saying that there should be no social host liability which is one of the cases we teach in torts, a famous case called Childs and Desert Mall. So it's the application of the law to a person's specific set of facts that makes it legal advice and that's the point that the line is drawn and that we can't cross. So when a specific person comes to me and says I have the specific question this is my facts. How does the law apply? When I was a lawyer I gave advice all the time but I can't do that anymore. I understand what you're saying but if you're dealing with a case I'm talking about an older legal case so you're not giving an individual care personal facts but it could be that you would be dealing with cases that might be similar to things that people here are facing and that could be in the sense really helpful to go on with the legal and that option. And legal textbooks will do some of that and legal articles will do some of that but not the one that's jumping immediately to my mind is there's a personal injury textbook that has listed out the amount of pain and suffering damages that people have gotten in previous cases for certain types of injuries and so lawyers will go and consult this book which has massive hundreds of pages of charts and you can find out if somebody hurt their elbow where are the previous elbow cases and look up how much people get for pain and suffering for hurt elbow so that would be a way and you could do that too you can look at a legal textbook and see how the law has evolved or what kinds of cases say or a parent who's allowed to move in a family law case what kinds of situations are situations where the parent is allowed to move away with the child versus cases where the court says no they're not allowed to move away with the child there are articles that discuss the case law and that's not legal advice because it doesn't relate to somebody's specific case it's looking at the law generally and that would be the difference I would say. Other questions? We have a couple more minutes. Yes? So you mentioned that you're not allowed to get legal advice anymore even though you have a legal degree because how does that work where you're not allowed to do law? So in order to be able to give legal advice you have to be called to the bar and so in the legal resources handout that I have, law students do all kinds of wonderful volunteer work with people but they can only give them legal information and they're trained early on in what the difference is so that they don't go over the line accidentally so for me when I was a practicing insured lawyer for many years I could give advice to my clients and that's what they needed from me at the time now I'm what's known as a non-practicing lawyer which means I can't give legal advice anymore so it has to do with the status that I have with my regulated the body that regulates lawyers in Nova Scotia I wanted to fill out the paperwork and go back to practicing status and I could give legal advice again. One of the biggest problems of looking for a new lawyer is that if my partner hadn't even called a law firm or I bit like I was a problem in one other like a divorce like eight years ago suddenly I think it's the entire law firm or even if it's called around to some nationwide because they told them suddenly I have no access to that entire firm so I'm not sure how people go around that so it's good exceedingly to help define a formal lawyer and the options keep it smaller and some people use that as an actual litigation strategy so if you know that you're going to do some construction litigation you can say I'm going to go conflict out the best five construction lawyers they're calling them and paying for an hour of their time and then yeah so the other side's going to have to yeah yeah no whether I don't know if that was the case in your situation it could just be an unhappy coincidence surely they can't get to everyone right so you've got a tutor's rule of 55 somebody who does at least half their practice of what you need and has at least five years of the bar how long has that been oh that's just my personal rule oh no I meant to like I kind of over the conflict of interest rule yes so the rule what the rule says is if the lawyer already knows secrets or information that's private from one client they can't represent the other side in the same dispute or a dispute that's so related that information could potentially get used so it's a rule that's designed for the protection of the clients on both sides but it's a frustrating one especially if it's small if you live in a little community like pick Joe it can be really easy to have all of the lawyers of the type of case you need now can't do it so you're driving somewhere but I would say keep looking and you'll be able to find someone the bar in Nova Scotia is big enough especially for family you'll be able to get there yeah yes one more question last word I want to be very visualized and talk about finding out if there are any questions that have been placed on for us before finding that so the registry of deeds in every county has a judgment role and you can search the judgment role there's usually a little fee and find it if this person is named in the judgment role is having a judgment against them and if they did whether it was satisfied or whether it's still outstanding you could also go down to the courthouse and have a search done and whether they have any outstanding legal cases and that's public information so you'd want to do those two things together to find out because there's no point to say oh he's got no judges judgments against him let's go ahead and there's nine legal cases ahead of yours all of which are going to finish before yours does so you want to check both of those things before you embark on a big lengthy claim and maybe for small claims court maybe if it was sort of smaller case I wouldn't go to all of that labor but for a big case I would for sure especially if you're going to get representation and throw money at it if you have a lawyer the lawyer will do that for you but if you're on your own it's worth looking at and if when you get to the registry they can tell you how to do the search because that's legal information make sure you can do it okay one more these are both questions regarding the settlement could you comment briefly for us on informal settlement and whether a self-represented applicant has a reasonable chance making that kind of effort with someone who's represented by counsel oh that's a great question you made a comment that there are some restrictions on which judges could hear a formal settlement process and I'm wondering if you could clarify that for example if there was a judge who heard a chamber's hearing can that judge are there restrictions on her also hearing a formal settlement so I'll answer your second question first because it's the quicker of the two the answer is no so the prohibition is that someone the judge who hears your settlement conference should not then go on to hear your trial but what about if she's done the chamber's hearing that would be okay there's no problem with that and it's the same if somebody a judge has heard you before it's not a problem if here we go again you know with the same judge that's not a problem for the most part it's only the issue is that so people can speak freely before the settlement judge knowing that that information will never come back to bite them if the case doesn't settle and they have to go to trial so on your other question about can a self-represented litigant do okay in response to another party who has a lawyer that's a tough situation there is a power imbalance there so what I would suggest with the judicial settlement conference the judge will try to make sure that things are equal and they'll pull the plug if it looks like they can't put the parties on the same footing having legal advice about your rights and obligations even if you don't bring your lawyer to the settlement conference knowing what your rights and obligations are is enormously important in that situation you might consider a limited scope retainer and say well I can't afford you for the whole case but you know what come with me to this and represent me and give me legal advice during this conference because I want to see if we can settle this thing so I would say that's probably one or two ways to deal with that we're out of time but I'm happy to stick around and chat with people as well if you have additional questions and you didn't happen to have your question answered do come up to the front this is my sneaky way of getting you to come up to the front say hi to me come up to the front and get a handout on cost-effective lawyer-client relationships on legal resources and thank you so much for coming