Litigation II - Module #4: Evidence Notes

Litigation II - Module #4: Evidence

What is Evidence?

• Definition of Evidence:

  • Evidence = proof of facts

• Regulatory Framework:

  • Strict rules govern evidence.

  • The law of evidence consists of regulations that determine how facts can be proven in court.

  • Relevant statutes include:

  • Canada Evidence Act, R.S.C. 1985, c. C-5

  • Alberta Evidence Act, R.S.A. 2000, c. A-18

  • Common law principles also apply to the law of evidence.

Importance of Obtaining Evidence

• Role of Good Evidence:

  • Assists lawyers in evaluating the strengths and weaknesses of their cases, which is pivotal for legal strategy.

  • Contributes to the likelihood of winning a trial.

  • Anything that may establish the accused's guilt or innocence is potentially admissible as evidence.

Issues Related to Evidence

• Two Key Issues:

  • Issue #1: Liability

  • Requires proof that the defendant's actions were wrongful and that these actions caused the plaintiff's injuries.

  • Issue #2: Quantum

  • Involves proving the amount of damages that have resulted from the defendant's liability.

Liability Evidence Activities

• Activity #1:

  • Scenario: Represent a Plaintiff injured in a slip and fall at a grocery store due to spilled yogurt.

  • Task: Create a list of at least five types of evidence supporting the grocery store's liability.

• Activity #2:

  • For each type of evidence identified in Activity #1, explain how to obtain it:

  • Determine the source of the evidence.

  • Outline the method to collect the evidence.

Quantum Evidence

• Definition:

  • Quantum evidence refers to evidence that substantiates the extent of damages and injuries suffered.

• Example:

  • In the slip and fall scenario above, identify five items of evidence that could prove the quantum of damages incurred.

Obtaining Confidential Information

• Method to Obtain Confidential Information:

  • A written authorization or release is necessary.

  • Typically, the client signs several such documents, with dates left blank for completion upon need.

Best Evidence Rule

• Principle:

  • The best evidence available should be utilized to establish facts in a legal proceeding, which includes:

  • Eyewitness testimony

  • Sworn statements from witnesses

  • Documentary evidence

  • Information regarded as hearsay should be handled carefully.

Hearsay Rule of Evidence

• Definition of Hearsay:

  • Hearsay is defined as oral or written statements made outside of court.

  • Such statements are inadmissible for the truth of their content unless they are made by the accused.

  • Hearsay includes secondhand information where a witness reports what they heard from another person.

• Evidential Limitations of Hearsay:

  • Parties can only present information of which they have direct knowledge.

  • While the court can know that a statement was made, it cannot confirm the truth of that statement through hearsay testimony.

• Exceptions to the Hearsay Rule:

  • Instances where hearsay might be admissible include:

  • Situations where collecting direct evidence is impossible.

  • Medical records.

  • Testimonies from other legal proceedings.

  • Spontaneous declarations.

  • Dying declarations.

Expert Reports

• Requirements for Expert Reports:

  • According to Rules 5.34 and 5.35, an expert report must include:

  • A statement summarizing the expert's evidence, signed by the expert.

  • A copy of the report on which the other party intends to rely, also signed by the expert.

  • A Notice of Intention to submit the report as evidence if the expert will not testify at trial.

• Filing and Serving Expert Reports:

  • The party who obtains the report is required to serve it upon the other parties involved.

  • The opposing party has two months upon service to object to the report's admissibility.

  • If there are no objections, the report may be accepted at trial.

Rebuttal Experts

• Rebuttal Process:

  • Alongside the objection to an expert's report, the opposing party can present their own expert witness for rebuttal.

  • Content of the Rebuttal Expert Report:

  • Must contain a statement of the substance of the rebuttal evidence, signed by the expert.

  • Should include a copy of the Rebuttal Report the opposing party intends to rely on, signed by the expert.

  • A Notice of Intention indicating plans to submit the rebuttal report as evidence if the rebuttal expert will not testify.

Surrebuttal Experts

• Purpose of Surrebuttal Expert Reports:

  • A Surrebuttal Expert Report can be submitted in response to New issues that arise in the rebuttal expert report.

Exchange of Expert Reports

• Trial Readiness:

  • A case cannot be set for trial until all expert reports have been exchanged as per court regulations.

  • The Canada Evidence Act allows each side to present only five expert witnesses.

Court Experts

• Appointment of Court Experts:

  • Under Rule 6.40, a court can appoint an independent expert, though this is uncommon.

  • Appointments can occur at the court's own initiative or upon a party's request.

  • This is considered when independent technical or medical evidence is deemed necessary.

• Costs and Procedures Involving Court Experts:

  • Costs from the appointment of court experts are usually shared by the involved parties, although alternative arrangements can be ordered.

  • If consensus on the expert's identity is unattainable, the court will make the decision.

  • The court expert is expected to submit a written report, which is then verified by affidavit.

• Examination of Court Experts:

  • Parties have 20 days to seek permission to examine the court expert regarding the report, either before or during the trial.

Locating Experts

• Strategies for Locating Expert Witnesses:

  • Engage university specialists.

  • Consult other lawyers with relevant experience.

  • Connect with the Alberta Civil Trial Lawyers Association.

  • Utilize the Technical Advisory Service for Attorneys to find expert witnesses.