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CHAPTER 1
Advocacy and the Litigation Process
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Introduction
• Trials result from disagreement between plaintiff and
defendant as to the facts of a case
• Judge: makes findings of fact, applies relevant law, comes
to a decision
• Example of facts in a civil dispute: Kitchen Renovation
Case
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The Kitchen Renovation Case
• Tina Fey and her husband hired Baldwin Brothers
Construction to make some minor renovations to their
kitchen for a total contract price of $7,500
• The work is now completed but the Feys and the
Baldwins have a disagreement about payment for the
installation of three pot lights
• Tina claims that the contract price included the installation of all
necessary lights in the kitchen
• Baldwin Brothers Construction claims that the contract required
them to install five pot lights only, and that the three additional pot
lights that were requested were extra and to be paid for separately
• Tina has paid the original contract price but refuses to pay any
more
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The Trial
• The parties cannot resolve this disagreement, so Baldwin
Brothers Construction has started a Small Claims Court
action claiming $750 for the cost of supplying and
installing the three disputed pot lights
• The judge must decide whether to grant judgment to the
plaintiff for the $750
• First the judge must determine what exactly the parties agreed to
based on the evidence presented by the parties in court
• The parties did not have a written contract. Tina Fey and Alec
Baldwin were the only people present when the oral contract was
made, and they each have a very different understanding of what
they agreed to
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The Decision
• The judge listens to each party’s retelling of the events
and chooses which version to believe
• Parties’ stories can differ if one of them is lying, but more often
stories differ because parties remember the events differently
• The judge will believe the story that makes more sense
• It is the advocate’s role to present the client’s story in the most
persuasive way
• After determining the facts of the case, the judge will
arrive at a decision by applying the relevant law to the
facts
• It is the role of the advocate to advise the judge of the
applicable law and suggest how that law should be
applied to the facts
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Advocacy and the Litigation Process
• Advocacy: the process of presenting a case or defence
at a trial or hearing before a civil court, a criminal court, or
an administrative tribunal
• Advocate: a person who pleads the cause of another
before a court or tribunal
• Paralegals may act as advocates at tribunals and lower-level courts
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Advocacy and the Litigation Process
(cont’d)
• Substantive law defines legal rights and obligations
• contract law
• tort law
• family law
• real estate law
• criminal law
• Procedural law deals with the way in which a dispute first
comes to a court or tribunal and is then brought forward to
a final resolution at a trial or hearing
• Law of evidence: deals with how the facts (as required
by substantive law) are to be proved