There is little flexibility in trial procedure in criminal courts, but in small claims court judges may sometimes adjust trial procedures to ensure that people without a lawyer are able to present their cases effectively and fairly.
Cross-examining the person you have a disagreement with can be a very difficult thing to do. Cross examination is a series of questions – and nothing more. When cross-examining a witness you cannot make statements and you cannot argue back. No matter what answer you get, you can only ask another question. It takes lawyers a long time to learn to cross-examine well, so it’s not surprising that people who haven’t had practice have trouble sticking to the rules.
That’s not to say that you have to be a lawyer to cross-examine effectively. Some self-represented litigants (people conducting trials without a lawyer) put tremendous thought and care into preparing cross examination and do it skillfully. So when people are comfortable giving their own evidence and asking questions of other witnesses, judges may follow the traditional trial procedure that works like this:
The claimant testifies and then the defendant cross examines (questions) them.
The claimant presents any other witnesses they have brought to court. For each witness, the claimant questions them first and then the defendant cross examines them.
If the defendant decides to provide evidence, they may testify and then the claimant cross examines them.
The defendant presents any other witnesses they have brought to court. For each witness, the defendant questions them first and then the claimant cross examines them.
However, Rule 10 (1) of the Small Claims Rules permits Provincial Court judges to modify the traditional procedure when they consider it appropriate. How might the procedure be modified?
Testimony outside the witness box
In a trial where the parties to the lawsuit are the only witnesses, a judge might begin by having each swear (take a religious oath) or affirm (make a non-religious promise) to tell the truth. Then the judge might ask each party to tell their story from their place at the counsel table (the table facing the judge at the front of the courtroom), giving each the chance to respond to the other and ask relevant questions.
This approach is designed to address the problem that when cross examining, people often feel the need to state what happened from their own perspective before asking a question. In a traditional trial what they say when questioning doesn’t form part of the evidence. When a judge has both parties sworn or affirmed at the start of a trial, they may tell the parties that all statements they make during the trial will be considered as evidence.
Modified order of proceeding
If the parties don’t wish to cross-examine, a judge may hear the claimant’s testimony, then hear the defendant’s, and then permit the claimant to testify again to deal with any new issues raised in the defendant’s evidence.
If they do wish to question each other, a judge might hear both parties’ testimony without cross examination first. Then the claimant might cross-examine the defendant, and finally the defendant might cross-examine the claimant. Since they have already told their story before being required to question, people may find it easier to focus on the issues and limit their cross-examination to relevant questions. If there are additional witnesses, they may be heard after both parties testify.
If people seem unsure of what they should cover in their testimony, a judge may take a more inquisitorial approach and ask questions of both parties to help them cover the necessary facts and clarify confusing evidence. But when a judge tries to help bring out the necessary evidence by questioning it is important to remember that the help they can give you is limited. A judge must remain impartial and does not know the details of your case. It is still your responsibility to ensure that you give the judge all the information needed to make a just decision.
How can you tell what procedure your judge will use?
Prepare cross-examination if you are able, and let the judge know you have questions you want to ask. But if you do not feel able to cross-examine, tell the judge that.
You can expect your judge to explain the procedure he or she will follow at the start of a trial. Although traditional trial procedure is followed in criminal courts, in small claims (also called “civil”) matters, the judge may be able to make changes to respond to the parties’ needs. In some circumstances, a judge may also modify the procedure in a family court trial.
For more information on preparing for Provincial Court trials, see Understanding a Small Claims Court Trial, Guide to preparing for a family court trial in Provincial Court and
Preparing Financial Documents for Family Court.
Legal terms used in this article:
Affirmation - a solemn promise to tell the truth. It has the same legal significance as a sworn oath.
Claimant – the person who files a Claim in Small Claims Court to start a lawsuit
Cross examine - to question the other party and their witnesses after they testify
Defendant – the person being sued in Small Claims Court
Evidence - witnesses’ testimony and paper documents, photographs, objects etc.
Oath - a solemn promise sworn to God to tell the truth
Parties - the people suing or being sued
Testify - to tell the judge the facts after swearing or affirming to tell the truth
Testimony - oral (spoken) evidence given under oath or affirmation.