U402 Part B civil procedures and the jury system

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U402 Part B civil procedures and the jury system

  1. 1. P A R T B C I V I L P R O C E D U R E S & T H E J U R Y S Y S T E M C H A P T E R S 9 , 1 0 & 1 1 U N I T 4 R E S O L U T I O N & J U S T I C E Area of Study 2 Court Processes & Procedures & Engaging in Justice
  2. 2. Outcome U402 Part B !  You should be able to explain the processes and procedures for the resolution of criminal and civil disputes, and evaluate their operation and application, and evaluate the effectiveness of the legal system
  3. 3. Key Knowledge !  Elements of an effective legal system: entitlement to a fair and unbiased hearing, effective access to the legal system and timely resolution of disputes !  Supreme Court pre-trial procedures, including pleadings, discovery and directions hearings and the purposes of these procedures !  The purpose of civil remedies !  Types of civil remedies, including damages and injunctions !  Problems and difficulties faced by individuals in using the legal system !  Recent changes and recommendations for change in the legal system designed to enhance its effective operation !  Role of juries, & factors that influences their composition !  Strengths and weaknesses of the jury system !  Reforms and alternatives to the jury system
  4. 4. Key Terms !  Civil action !  Civil law !  Damages !  Defendant !  Directions hearing !  Discovery !  Injunction !  Interrogatories !  Notice of appearance !  Plaintiff !  Pleadings !  Remedy !  Statement of claim !  Statement of defence !  writ • challenge for cause • disqualified jurors • excused jurors • foreperson • hung jury • ineligible jurors • jury • majority verdict • peremptory challenge • unanimous verdict • Alternative dispute resolution • class action • collaborative law • Justice Statement 2 • legal aid • representative proceedings
  5. 5. C H A P T E R 9 I N T R O D U C T I O N T O C I V I L L A W B R I N G I N G A C I V I L A C T I O N S U P R E M E C O U R T P R E - T R I A L P R O C E D U R E S T R I A L P R O C E D U R E A P P E A L S E F F E C T I V E N E S S O F C I V I L P R O C E D U R E S Civil Procedures
  6. 6. Introduction to Civil Law Standard of Proof – Balance of Probabilities Burden of Proof – lies with the Plaintiff Civil Disputes
  7. 7. Bringing a Civil Action !  Main reason for bringing a civil action is that the plaintiff wishes to be compensated for the wrong they have suffered, often by the way of receiving a remedy in the form of damages !  Bringing a civil action is also known as ‘issuing proceedings’ or ‘suing’
  8. 8. Supreme Court Pre-Trial Procedures !  Purpose: !  Inform both parties of the details of the case !  Exchange documents !  Inform defendant that legal action is being taken against them !  Offer out-of –court settlement opportunities !  Clarify issues !  Prepare case !  Stages !  Pleadings !  Discovery !  Directions Hearings
  9. 9. Supreme Court Pre-Trial Procedures !  Pleadings Definition • Documents filed with the court and exchanged between parties so that the details of the claim be known Purpose • Encourage out-of –court settlement, make sure that both parties are ready for trial and limit the area of the dispute by encouraging them to agree on as many points as possible Details • Pleadings commence when the plaintiff files a writ. A statement of claim is usually attached • The defendant gives notice that they will defend the action by filing a notice of appearance and a statement of defence. A counterclaim may also be made by the defendant. • Pleadings may conclude with a reply
  10. 10. Supreme Court Pre-Trial Procedures !  Discovery Definition • Both parties give complete and honest disclosure of all their evidence Purposes • To encourage out-of-court settlement by showing each party the strength of the other side’s case • To minimise surprises for each party once the trial starts Details • Interrogatories are detailed written questions about the other side’s evidence • Each party will supply a list (affidavit) of their evidence, and must give the other side copies of anything they request. This is called ‘discovery of documents’.
  11. 11. Supreme Court Pre-Trial Procedures !  Directions Hearings Definition • Hearings conducted with the judge who will try the case, where issues of law can be settled and an efficient timetable can be set for the trial Purpose • To identify whether there is any final chance for out-of-court settlement. • To speed up the resolution if the case does proceed to trial. Details • The judge may refer the parties to mediation with or without their consent. • Parties should estimate the number of witnesses they will call, and highlight any problems with the witnesses’ availability
  12. 12. Effectiveness of Pre-Trial Procedures Strengths Weaknesses Provide parties with various opportunities to reach an out-of court settlement Long and complex Allows parties to determine the strengths and weaknesses of each others case Cost be high particularly in the discovery stage Allows parties to determine whether it is worthwhile proceeding with their case Stressful and inconvenient Provides the court with information about the case before it begins, leading to a quicker trial Complex and often require legal representation Might result in some issues being conceded by the parties thereby saving court time in trial Lengthy process leads to delay in damages and availability of witnesses
  13. 13. Supreme Court Trial Procedures !  You are not required to have a detailed understanding of the processes and procedures followed in court during a civil trial. !  However, an understanding will be beneficial in understanding rules of procedure in the adversary system of trial !  See handout …
  14. 14. Remedies Name Description Purpose Damages • A sum of money paid to the successful plaintiff by the defendant • Compensatory damages aim to return the plaintiff to the position they were in before the harm occurred. Can be specific, general or aggravated • Nominal damages aim to make a point of being lawfully right • Contemptuous damages aim to show a legal right to damages but not a moral right • Exemplary/Punitive damages aim to punish the defendant for their wrongdoing Injunction • A court order compelling the defendant to do something or stop doing something • Mandatory injunctions force the defendant to do something to repair the harm • Restrictive injunctions compel a defendant to stop doing something, often to prevent further harm
  15. 15. Civil Appeals Court Appellate Jurisdiction Magistrates’ Nil County Nil Supreme • Magistrates’ on point of law • VCAT (excluding President or Vice President cases) Court of Appeal • County and Supreme on points of law, points of fact or amount of damages • VCAT (President or Vice President) • Applications for new trials • Applications to set aside decisions • Cross-appeals (decisions made on appeal)
  16. 16. Effectiveness of Civil Procedures Fair and unbiased hearing Processes for • Both parties are on an equal footing in the case due to exchange of documents • The rules of evidence and procedure ensure that both are treated equally • The existence of an impartial and unbiased judge, magistrate and jury helps to uphold fairness Processes against • The complicated an extended pre-trial stages in civil cases necessitate the use of legal representation. • They may appear to be inconsistencies in the damages payouts causing unjust outcomes
  17. 17. Effectiveness of Civil Procedures Accessibility Processes for: • Case heard by experts who are specialised in their field • Option to appeal • Tribunals such as VCAT • Increased use of ADR methods provide low-cost access to dispute resolution Processes against: • Potential litigants may not be aware their rights have been infringed • High costs associated with court fees and legal representation as well as the steady increase as the case develops up the hierarchy limiting appeal options
  18. 18. Effectiveness of Civil Procedures Timely resolution of disputes Processes for: • Many opportunities for out-of-court settlements • Issues are clarified prior to trial • Directions hearings speed up the processes and set time limits for further stages Processes against: • Delays can occur in initial stages with hesitation to pursue a case • Lengthy pre-trial procedures add to the delay resolving dispute • Increased workload in courts • Lack of sufficient court resources
  19. 19. C H A P T E R 1 0 R O L E O F T H E J U R Y C O M P O S I T I O N O F J U R I E S S T R E N G T H S & W E A K N E S S E S O F J U R Y R E F O R M S T O T H E J U R Y S Y S T E M E F F E C T I V E N E S S O F J U R Y S Y S T E M The Jury System
  20. 20. Role of the Jury A jury is a random selection of people from the community, who give parties a trial by their peers They listen to, and try to understand, the law as explained to them by the judge They decide the facts of the case and apply the facts to the law to see if the case has been proved to the standard of proof They reach a unanimous or majority verdict, and in most civil cases they decide the amount of damages They listen to and weigh up the evidence and arguments put by each side, with an impartial and unbiased mind
  21. 21. Composition of Juries !  A questionnaire is sent to everyone enrolled to vote for the House of Representatives !  Selecting a jury pool: Disqualified: If they have done something in the past that makes them inappropriate (e.g. being in jail for more than 3 years), they will be disqualified Ineligible: If their job is too closely connected to the legal system or they cannot perform the task of juror, they will be ineligible Excused: If they fit a certain criteria for hardship or can make a valid request, they may be excused Liable: Anyone left will be liable for service and will receive a date to attend court. Failure to attend may result in a fine or imprisonment
  22. 22. Empanelling a Jury Potential jurors may be sent to a courtroom that needs a jury The judge will give them information about the case such as key witnesses. Potential jurors can ask again to be excused. If they are not excused and their name is picked, they are empanelled on the jury unless one of the parties makes a challenge against them Peremptory challenge: 6 (criminal) or 3 (civil) per party, with no reason given Challenge for cause: Unlimited, but the judge must accept the reason This continues until 12 (criminal) or 6 (civil) jurors are empanelled
  23. 23. Comparison of criminal jury and a civil jury Feature Criminal Civil Jury Present Compulsory in County Court and higher Optional Number of jurors 12 (up to 15) 6 (up to 8) Empanelment Six peremptory challenges and unlimited for cause challenges Three peremptory challenges and unlimited challenges for cause Differences in Role of Jury • Find accused is guilty or not guilty beyond reasonable doubt • Unanimous decision not met within 6 hours 11:1 majority acceptable • Find for either the plaintiff or the defendant on the balance of probabilities • Unanimous decision not met within 3 hours 5:1 majority acceptable • Added role of deciding on the amount of damages awarded to the plaintiff if they find for them.
  24. 24. Strengths & Weaknesses of the Jury System Strengths Weaknesses • Trial by peers • Independent and impartial • Community values • Community participation • Intelligible • Decision-making is spread • Guard against misuse of power • Take role seriously • Not necessarily a true cross-section • Preconceived ideas or bias • Influenced by media • Lack of ability recall evidence presented • Unfamiliar with rules of evidence and legal procedure • Do not give reasons for their decision • Increase in cost and length of a trial • Make wrong decision
  25. 25. Recent Reforms to Jury System !  Extra jurors !  Majority verdicts !  Making the jury more representative !  Jurors not allowed to make their own enquiries NOTE Be sure to know the differences between a recent reform, suggested reform and an alternative
  26. 26. Suggested Reforms to the Jury System Future Reforms • Appoint a specialist foreperson such as lawyer, ex-judge or expert in the field to advice the jury in complex cases • Make the jury give written reasons for their decision, showing they understand the law and evidence • Allow the jury to return a ‘not proven’ verdict that would delay the trial to gather more evidence Alternatives • Replace the jury with a panel of judges • Replace the lay-person jury with a professional jury of people trained by the state to be jurors • Have very complex cases heard by professionals in the field. For example, medical negligence cases heard by a panel of doctors
  27. 27. Effectiveness of the Jury System Element of an effective system Processes for Processes against Fair and unbiased hearing • Jury selection process ensures independence and impartiality • Once empanelled jurors must disclose any connection with case/ witnesses ensuring unbiased hearing • Challenge process allows biased jurors to be removed • Some jurors may be influenced by media or personal bias • Some groups within society are unrepresented (e.g. Aboriginal people) • Jurors may not understand the nature of the law/courts Accessibility • In criminal cases the cost of a jury is on the state • In civil cases the cost of a jury is on the plaintiff (range $560 - $810 a day) Timely resolution of disputes nil • Empanelment is time consuming • Questions of law delay trial • Jury deliberations time consuming
  28. 28. C H A P T E R 1 1 F A I R A N D U N B I A S E D H E A R I N G A C C E S S I B I L I T Y T I M E L Y R E S O L U T I O N O F D I S P U T E S P R O B L E M S / D I F F I C U L T I E S I N L E G A L S Y S T E M R E F O R M S T O L E G A L S Y S T E M Effectiveness of Legal System (summation)
  29. 29. Effectiveness of the legal system Element Meaning Ways it is achieved Fair and unbiased hearing • Nature justice means a fair and equal chance to present your case, with a decision based on evidence only • Independence of the judiciary • Strict rules of evidence Accessibility • People need to have the time, money, knowledge and physical access to resolve disputes • Tribunals • County court sittings • Legal Aid • Interpreters Timely resolution of disputes • Disputes must be resolved in an appropriate time • Parties also need adequate time to prepare • Case management • Pre-trial procedures • ADR
  30. 30. Problems/Difficulties with Legal System Fair and unbiased hearing • Increasing media reporting on trials can influence jurors • Important evidence can be excluded on technicalities by experienced barristers Accessibility • Strict merit test for Legal Aid usually requires the defendant to plead guilty to get funding • Free interpreters have been removed from the County Court and the Supreme Court Timely resolution of disputes • Mediation is often compulsory before civil trials but can prolong proceedings if unsuccessful • Insurance companies often delay until injuries have stabilised or the plaintiff has died, which also reduces damages
  31. 31. Recent reforms to the Legal System Fair and unbiased hearing • Judicial training in issues relating to race, ethnicity and use of interpreters • Broadening the pool of jurors by decreasing the prosecution’s peremptory challenges, and limiting the categories of excused and ineligible Accessibility • Increased funding for Legal Aid • Koori Courts for sentencing • Inquisitorial elements brought into the Family Court Timely resolution of disputes • Compulsory mediation before Supreme Court civil trials • Directions hearings • Increased jurisdiction of the Magistrates’ Court
  32. 32. Possible Future Reforms to Legal System Fair and unbiased hearing • Allow deaf and blind people to sit on juries • Provide guidelines for juries calculating damages to achieve more consistency Accessibility • Re-introduce free interpreters into the County Court, Supreme Court and Court of Appeal • Increase VCAT jurisdiction to include more matters such as fencing disputes Timely resolution of disputes • Introduce compulsory mediation for County Court civil trials as well • Allow simple trials to be conducted on the basis of documentary evidence
  33. 33. End of U402 part B !  SAC Thursday 11th Sept/ Friday 12th Sept
  34. 34. References !  Beazer, Humphreys & Filippin (2012) Justice & Outcomes 12e, Oxford University Press !  Aldous (2008) Making & Breaking the Law, 8th edition, Macmillan Education Australia !  Humphreys (2011) Legal Notes Units 3 & 4, 2nd edition, Nelson Cengage Learning !  Jacaranda online, www.studyon.com.au

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