Court hearings novice guide : part 5. trials

This Saturday Slot post is the fifth part of my weekly series of posts on Court Hearings (in the UK). You can see the others >> here.

Trials

This is the type of hearing which everyone worries about. But if you are calm and careful about it, they can be fine. The first thing to do, is forget about court hearings you have seen in TV drama’s! Real life hearings are nothing like them. For a start they are far more boring …

We are really talking in this section about small claims hearings, so I will concentrate on these. Please read part 4 of this series on interim hearings and applications, as much of the information there, eg regarding the venue and what you call the Judge, will be relevant here too.

Most small claims hearings will be heard in the Judges room, and will only take place in a court room if there are no Judges rooms available (which is unlikely). It is also unlikley that they will be heard by anyone other than a District Judge. Note that if this is not the case, or if there is anything you are unsure about, ask the Usher. That is what they are there for.

In a small claims trial, the strict rules of evidence and procedure do not apply and it is up to the Judge how he deals with the case. However it will almost always involve the claimant going first, then the defendant, and then the claimant having a final opporutnity, before the Judge makes his decision.

Often the hearings will be quite informal. However always remember that this is not a ‘chat’ or a meeting. It is a court hearing, and can carry serious consequences.

Proving your case

If you are the claimant, you will have to make out your case. The Judge does not have second sight – you will need to prove things to him. And do not expect him to take things on trust. He will need evidence, and his decision will be based on the quality of the evidence he is shown.

However, if you do not have documentary proof of something, do not think that all is lost. Very often a case will come down to who the Judge believes. This is his job, to ‘judge’. When you spend your life hearing cases and listening to witnesses giving evidence, you often develop a sixth sense for who is telling the truth.

So if you are in the right and your opponent is lying through his teeth, you have a good chance of being believed. However Judges are not infallable, so try to have some decent evidence to support your case as well.

The ‘standard of proof’ (as the lawyers call it) is that the Judge must be convinced that your case is more likley to be correct ‘on the balance of probability’. (This is a lower standard of proof than that in the criminal courts where the prosecution must prove its case ‘beyond reasonable doubt’.)

The best way to prove your case (and the way that the Judge will prefer) is to split your case up into sections. For example if you are claiming against your tenant £750 for damage done to your property, you may be claiming for several things, eg a damaged door, a stained carpet and for cleaning. For each of these items you need to prove:

Liability: this will include proving

that the damage actually took place and
that it is something the tenant is liable for (eg that it is not something due to ‘fair wear and tear’).

and

Quantum : this will include proviing

that you have actually paid for the item (or possibly that you will pay for it in the future), and
that the sum you are claiming is a reasonable one.

You need to do this for each and every item you are claiming.

So for example, for the carpet, your evidence should include photographs of the damaged carpet (and if you have them, pictures of it in its pristine state at the time the property was let to the tenants). For the cleaning, you will need to explain to the Judge (again using photographs if you have them, or perhaps with a witness such as your inventory clerk) why the condition of the property was beyond what will be covered under ‘fair wear and tear’.

So far as quantum is concerned, you will need to produce receipts and estimates. You will also need to show that the sum paid was reasonable. For example it will be unreasonable to expect the tenants to pay for a tatty old carpet to be replaced with an expensive new one (that is known as ‘betterment’, which is not normally allowed).

If you are the defendant, you will need to do the same exercise but in reverse. So for example in my hypothetical £750 damages case, you will be trying to prove that the carpet was hardly damaged at all, and that the house was left in a clean condition. And that if (which is denied) you are liable for anything, the sums claimed by the claimant are extortionate! An Argos catalogue (or something similar) is often used to show the average price of things.

Witnesses at trials

Your evidence will generally be mostly documentary – receipts, the tenancy agreement, photographs etc. However you may also have a witness, although often the only person giving evidence will be you.

A good witness, who gives clear evidence, can be a great help to your case. Before giving evidence they will need to be sworn. This means reading the wording of the oath off a card held up to them by the Usher and (if they are swearing on it) holding a bible in their right hand. They can also affirm, which means reading off a slightly different card and not holding a bible.

However the legal effect of both is the same. If you subsequently tell an untruth as part of your evidence, this is perjury which is a criminal offence. Don’t do it.

Often the witness will have signed a witness statement. If so, they will be asked to confirm this on oath, and you may also want to ask them a few questions about it. If there is no witness statement they will have to give their evidence orally, in response to questions from you. Or if you are giving evidence for your own case, just say what happened.

After this your opponent will be given an opportunity to cross examine. The Judge also may want to ask questions.

Finally, you will be given an opportunity to ask any questions of the witness which have occured to you as a result of the cross examination (known as re-examination).

Taking notes at trials

If you don’t agree with anything the witness says, you should not interrupt, but wait until your turn. It is therefore very important that you make notes of eveything said so you do not forget anything. This is why solicitors and barristers in court hearings are always scribbling away.

A useful technique is to write a big CX at the start of your notes of the original examination of the witness (called examination in chief), a big XX at the start of the cross examination, and a big RX at the start of the re-examination at the end.

You also need to keep a record of everything your opponent says, whether you are a claimant or a defendant. If you do not write it down, you will find it difficult to prove it was said later, or even remember it.

Courtesy

There is a tradition in the English Courts of being polite. So if you start banging around, shouting and swearing, and losing your temper, that will not go down at all well with the Judge. Remember also that he can always call on the court security staff, and in extreme cases, can order you to leave the court room or ultimately be imprisoned (not that I have ever known this happen, but …).

You should also not interrupt people when they are speaking. When it is your turn, you should be allowed to have your say. Likewise when your opponent is speaking.

If your opponent interrupts you, stop speaking immediately and look towards the Judge (with a polite but outraged expression, if you can manage this). He will probably tell your opponent to stop and let you finish. If the Judge does not do this, interrupt as politely as you can (but firmly), and ask the Judge if you could be allowed to finish what you were saying.

Being polite does not mean allowing others to ride roughshod over you, but there is a difference between being firm and being rude. Try to be firm.

Wrapping things up

It is important that you say all that you need to say during your ‘turn’. Although the Judge will try to ensure that both parties have an opportunity to say all they need, it is best to say things at the right time.

This is where your preparation comes in. You will probably feel flustered and nervous. The Judge will understand this and will not mind if you ask for a few minutes to check through your notes. If you have written things out clearly in advance you should be able to see easily whether you have covered everything. Order and method are so important in preparing for court hearings. And proper preparation is key. Remember, this hearing is your chance to prove your case. Don’t waste it.

Once the presentation part of the hearing is over and the Judge has made his decision, it will generally be too late to change things. But we will talk about this in the next section.

Have you attended any hearings? How did you get on? Do you have any tips for readers?