Conducting A Trial: Things Self-Represented Litigants Should Know

It is important to remember that, as a self-represented litigant, you are fully responsible for the presentation of your case to the court and you cannot relieve yourself of this responsibility by simply relying on these comments or by relying on the fact that you are not represented by counsel.  If you have questions at any time, you should let the trial judge know.  That being said, here are our top five things that you need to know about conducting your own trial.

  1. Burden of Proof:

If you are the applicant, is is your responsibility to prove the claims in your application.

If you are the respondent, it is your responsibility to prove any claims in your answer.

All claims must be proven on a balance of probability that is greater than 50%.

  1. Opening Statements:

At the beginning of a trial, the applicant is entitled to make an opening statement to outline the background to their claims against the respondent and a summary of the evidence that they intend to call.

After the applicant’s opening statement, the respondent may also make an opening statement which can outline the defence to the applicant’s claims, the background to any claims being made against the applicant and a summary of the evidence that the respondent intends to call.  The respondent may choose to wait to make an opening statement until after the close of the applicant’s case.

You are not required to make an opening statement, the decision is solely up to you.  However, regardless of your decision, you must not interrupt the other party’s opening statement, even if you disagree with parts of it.

What is said in the opening statements is not evidence.  Therefore, if what was said in an opening statement is not borne out by the evidence that is subsequently presented, or is contradicted by that evidence, then what was said in the opening statement will be ignored by the trial judge.

The sole purpose of an opening statement is to enable to trial judge to better follow the evidence as it is called.

  1. Procedure for Introducing Evidence:

After the opening statements, the parties will introduce the evidence that they each rely upon which may consist of testimonies from witnesses or the introduction of documents.

The applicant will have the right to testify and call witnesses to give evidence in support of their case first.

Once the applicant’s case is closed, the respondent will then have the right to testify and call witnesses in support of their case.

It is during your evidence and the evidence of any witnesses that you call that you may produce and identify any documents to be entered as exhibits in the trial.

The opposing party may cross examine each witness that you call, but you have the right to re-examine the witness directly after in order to provide you with the opportunity to clarify matters raised by that cross-examination.  That being said, you may not raise any issues during re-examination that were not discussed by the opposing party during cross-examination.

After your last witness has been called, you will close your case.

If you decide to testify, it is customary for you to be the first witness called in your case.  However, even if you decide not to testify, you may still be called as a witness by the opposing party pursuant to Rule 23(11).  If this is the case, you will be cross-examined by counsel for the other party or by the other party, if that party is also self-represented, and  you will be required to answer all relevant questions subject to certain limitations.

Prior to testifying, you will be asked to swear an oath affirming that you will be honest.  If you deliberately lie under oath, you may be subject to a charge of perjury, which is a criminal offence that bears its own separate penalty.  It is more beneficial  to plan what you will say ahead of time and rely on you memory rather than reading a prepared statement of evidence.  If you wish to look at a document for assistance or reference, you must first ask the trial for permission, show the document to both the trial judge and opposing party and explain to the judge what the document is and why you need to look at it in order for the judge to determine if it is permissible.

You can be heard by the judge in only two ways: either as a witness giving evidence from the witness box or as a self-represented party making submissions from the counsel table.  You cannot combine the two and must always maintain this distinction.  When in the witness box, you must restrict what you say to what you personally saw, heard, did, received, etc.  You cannot make submissions from the witness box.

  1. Reply Evidence

If the respondent chooses to call evidence after their witnesses have been called, the applicant may be permitted to lead further evidence in order to reply to and rebut the evidence introduced by the respondent.  This evidence is strictly limited to the purpose of replying to evidence of the respondent and may not include evidence that should have been introduced in the applicant’s initial case.  The applicant is entitled to call evidence in order to defend any claims made against them by the respondent.

If the applicant is permitted to call reply evidence, the same procedure will be followed as was used for calling evidence.

  1. Closing Submissions

Once all witnesses have testified, both parties will be able to address the trial judge and give their submissions and reasoning on what they believe the trial judge’s decision should be, based on the testimony that the witnesses have given and the documents that have been marked as exhibits.

The applicant will proceed first, followed by the respondent.  The applicant will have an opportunity to reply to submissions made by the respondent, however, this procedure is different from that of reply evidence.  You will make your closing submissions from the counsel table and it is important to remember that you are unable to refer to matters that have not already been referred to in the evidence.  The purpose of your submissions is to outline your defence or claim by referencing the evidence that has already been presented to support that defence or by pointing our the short-comings in the evidence led by the opposing party.

When conducting your own trial, it is important to consider whether or not witnesses at your trial should be excluded.  When the trial begins, if you or the opposing party requests an order excluding witnesses, the judge will likely grant the order.  In such case, except for you and the opposing party, all other witnesses will be asked to stay outside the courtroom until they are called to give their evidence to ensure that a witness is not influenced by the testimony of another.  Additionally, if such order is made, you must not discuss any of the evidence given at the trial with any of your witnesses before they are called to testify and must ensure that your witnesses are aware of the order and do not discuss their evidence with anyone until the trial is over.

Remember, it is never a good idea to represent yourself.  However, if you do, try to get some competent legal advice and assistance before choosing to conduct your own trial.