Trial Procedure and Evidence in Civil Proceedings
Foundations
Trial is the structured presentation of evidence on the issues framed from the pleadings. The candidate must understand framing of issues, burden of proof, examination-in-chief, cross-examination and re-examination, documentary evidence and proof, and admissibility.
Concepts to master
- Issues are framed on material propositions of fact and law in controversy; no evidence is needed on admitted facts.
- Burden of proof: the party asserting a fact must prove it; the burden may shift during trial.
- Examination of witnesses: chief examination (often by affidavit in modern practice), cross-examination as of right, re-examination limited to matters arising in cross.
- Documentary evidence: primary vs secondary evidence; proof of execution; objection to admissibility must be taken when tendered.
- Privilege and exclusionary rules apply in civil trials as in criminal.
- Admissions and confessions in pleadings or correspondence may dispense with proof.
Traps in questions
- Allowing leading questions in examination-in-chief.
- Failing to object to inadmissible evidence at the time it is tendered.
- Confusing burden of proof with burden of adducing evidence.
- Treating a document as proved merely because it is filed.
Rule of thumb
Plead it, issue it, prove it, object to it. A fact not pleaded and not in issue, however well proved, cannot found a decree.
Worked example
A claimant relies on a photocopy of a signed agreement; the original is said to be with the defendant. Secondary evidence may be led only after laying a foundation for its absence. If the claimant simply tenders the photocopy without explanation, the defendant's timely objection should succeed.