Frequently, technical matters must be proved through the use of oral evidence given by experts. Consulting engineers, mappers, doctors, actuaries, accountants, all fall into this category. The fees for these experts can be considerable. Their services are often required as early as exchange of pleadings period and they frequently require that those services be paid for before they are furnished.
Barristers (“Counsel”) are members of a branch of the legal profession who have agreed among themselves not to accept instructions from litigants other than through the agency of a solicitor. They generally specialise in the representation of litigants in court. There is a further sub-division between senior counsel and junior counsel. Senior counsel have agreed among themselves not to accept court work unless a junior counsel is also instructed. They also decline to draft pleadings or other documents except to the extent of reading what the junior counsel has prepared and amending that or suggesting amendments. The senior counsel then appends his/her name to the document and charges a fee for so doing.
Doctors who give evidence in court are by and large consultants. Professional and social eminence is an advantage to the doctor and his litigant client in a disagreement about the meaning or extent of a medical condition. These disagreements are rare. The plaintiff’s doctor will inevitably be the consultant from the hospital where the plaintiff was treated. The defendant’s doctor is specially hired by the defendant’s solicitor to examine the plaintiff and furnish the resultant medical report on the plaintiff to the defendant. The plaintiff is not entitled to a copy unless and until the parties exchange reports under a disclosure procedure before trial. It is in the plaintiff’s interest that all details of his/her complaints are related to the defendant’s doctor. The Irish Medical Organisation has agreed certain procedures to be adopted at these examinations. Questions related to liability should not be put by the defendant’s doctor to the plaintiff, and if put, need not be answered.
While most medical symptoms are objectively verifiable, some are not. A defendant has difficulty rebutting a plaintiff’s evidence relating to this subjective element. One method of overcoming this is to hire a private investigator who will follow and observe the plaintiff in his/her daily activities to see if he/she is engaging in actions inconsistent with his/her complaints. If the plaintiff is doing so, photographs and even a video showing this may be produced in court. The private investigator will often have spoken to neighbours and even household members of the plaintiff, under pretext.
More about Evidence
The Courts will only act or make findings on request of the parties. This is a significant matter: it means the court is not an investigating body. The court’s findings or acts will be based upon the evidence furnished to the court. The burden of proof of a particular fact or assertion lies with the person asserting it. The person bringing a case before the court is called the PLAINTIFF, and the person against whom the case is made is called the DEFENDANT. Normally the BURDEN OF PROOF lies with the plaintiff. The judgement of the court will be made by the court on the basis of the balance of probability, taking into account the evidence adduced or presented to the court. If a defendant introduces no evidence, then the plaintiff’s PRIMA FACIE case as represented by the evidence will succeed. However, if the defendant introduces evidence to rebut the plaintiff’s case and, on balance, that evidence overwhelms the plaintiff’s evidence, the plaintiff will lose his/her case.
Written statements of evidence from witnesses are not acceptable to the Court. Every witness whose evidence is to be presented to the court must attend personally to give evidence orally on oath and he/she may be cross-examined on that evidence. Parties to an action may, by agreement, dispense with formal requirements in respect of matters to be proved, and agree them as if they were proved. This can save time and money. Despite this it is not a common practice in personal injury actions.
However, with reasonable frequency defendants do admit liability, leaving the assessment of damages as the remaining issue. This relieves the Plaintiff of the obligation of adducing evidence to prove liability. In pleadings, what is not denied is taken to be admitted and the admission often takes the form of an omission to deny the Plaintiff’s allegation of negligence or whatever.
There are a great many things that need to be done by a plaintiff to properly prosecute his/her case. The following is a check list of some of the main points:
1. Write an account of your accident noting all the facts including the names and addresses of witnesses, if any.
2. Minimise your loss.
3. Notify your solicitor if new information comes to hand, if there is a relevant change in your medical condition or when you return to work.
4. Notify your solicitor if you change your address or telephone number.
5. Always attend on time for medical examination.
6. If you cannot attend a medical examination, notify your solicitor in good time.
7. Gather in all invoices; receipts etc., evidencing your loss/expenditure. Give these to your solicitor.
8. Quote your solicitor’s reference in all correspondence, phone calls, or visits. Make appointments to see your solicitor rather than call in “when passing”.
10. Furnish details of receipts from Social Welfare to your solicitor.
If a case goes to hearing before a judge the reasons for this are so numerous it is difficult to mention them all. Usually, the reason is a dispute as to what are the proper damages that should be paid to the plaintiff. The issue of liability is very important but very few defendants are so confident about the weakness of the plaintiff’s case that they think they can win on this issue.
Therefore, the plaintiff in going into the courtroom should appreciate that the basis of disagreement is often a very narrow area. Although the questioning of the plaintiff and his/her witnesses may not be confined to the area of disagreement, the defendant does not usually hope to discover something to his/her advantage in asking questions about the issue of liability.
The manner of the defendant’s lawyers will not show this. Part of the skill of a lawyer is to conceal his/her real feelings and goals. A performance will be produced and a show will be put on and usually no gain will be made except in the desired area, namely an attempt to show the judge that the effect of the injury on the plaintiff is not as great as the plaintiff makes out.
The fact is, it may and it may not. Some people are less disturbed by physical injury or disease than others. They are already motivated to get back on their feet and easily “put it behind them”. Others are not so fortunate. The plaintiff’s lawyers will have a chance of assessing this in their meetings with the plaintiff; the defendant’s lawyers do not get this chance. The system – an adversarial one – pushes them into a role where they are obliged to discount the plaintiff’s allegations let alone his/her bona fides. This sometimes leads them to suggest to a plaintiff that the consequence of what he/she is saying is to make a liar of the defendant or one or more witnesses for the defendant.
The proper reply to that is that the defendant or the defendant’s witness is mistaken. Lying is a subjective act. It is not usually within the knowledge of one witness what the subjective state of mind of another witness is.
When a witness for a party is called to give evidence by that party (the plaintiff is included in the category “witness”) the lawyer for the party calling the witness is restricted in the manner in which he/she may ask questions of the witness. The reason for this is that the lawyer is not there to give evidence, just to present it to the court. Leading questions
are not permitted to be asked by the lawyer, because the effect will closely resemble the articulation of the witness’ evidence by the lawyer. A leading question is one which suggests the answer desired by the questioner. A rough rule of thumb, but not an accurate statement of the matter, is that if the answer to the question is “yes” or “no”, then the question is likely to have been a leading question. The examination by a lawyer of his/her own witness is called EXAMINATION IN CHIEF.
The lawyer for the opposing party is not so restricted when permitted to CROSS EXAMINE the witness for the opposing party at the end of the examination in chief. Leading questions are permitted. Abuse of the witness by the cross-examiner should not be permitted by the judge. The lawyer will use the cross examination to undermine the evidence of the witness. This rarely involves an accusation that the witness is telling lies. It usually takes the form of showing the poor understanding which the witness has of the facts to which the witness has testified and the implications of that evidence. Sometimes evidence is given by a witness on cross examination which did not come out in the examination in chief and which is helpful to the client of the cross examining lawyer and is of more significance to the overall issue than the favourable evidence given by that witness for the benefit of the party by whom the witness was called.
Costs – “Costs follow the Cause”
A successful party usually (but not inevitably) is awarded costs against the unsuccessful party by the judge who determines the issue between the parties. It should be noted that a defendant can be successful!
The responsibility, however, for paying professional fees to the solicitor, barristers and experts for all work done in a litigant’s case, and for any outlay which is incurred on behalf of a litigant, rests with the litigant. In short, you must pay your way and the defendant must pay his way. This is the case both before and after the awarding of costs by the judge. A plaintiff’s solicitor has a claim against his client (successful or not). The client in turn, if successful in his/her action, has a claim over for part of these costs against the unsuccessful party.
However, the costs which the judge may award to a successful plaintiff (or a successful defendant) do not amount to a full indemnity (that is they will not fully compensate the party for all the costs and expenses that will have been incurred). The amount of such recoverable costs are known as PARTY AND PARTY costs. The solicitor’s entitlement against his/her own client is known as SOLICITOR AND CLIENT costs.
If a party is awarded costs on a party and party basis, it will usually include such witnesses’ expenses as the court – through TAXATION of costs procedure – will allow. There are fairly standard allowances which the TAXING MASTER makes for witnesses, and these are usually the minimum sums. A party may (more than likely will) have to pay sums out of the compensation awarded, or otherwise out of that party’s own pocket for witnesses’ and in particular, expert witnesses’ expenses.
It is not unknown in Ireland for the solicitor for the plaintiff to incur considerable expense on behalf of his/her client without being paid until the successful conclusion of the action. If the action does not end in success the solicitor will often have to take the loss. The current civil “Legal Aid” scheme in Ireland does not extend to personal injury actions (and is not working anyway).
Since 2004 a very important step should be taken by an injured person. Within two months of the injury the victim should deliver (through a solicitor) a letter of claim on the defendant. To fail to do this will put in danger the right to recover costs against the unsuccessful defendant.
After the Judgement
Following a decision by the court in favour of a Plaintiff, the defendant may pay the award (and the costs) or he/she may appeal. If he/she appeals from the District Court, the appeal is heard by the Circuit Court judge on the appropriate circuit. If he/she appeals from the Circuit Court, the appeal is heard by the High Court. If he/she appeals from the High Court, the appeal is heard by the Supreme court.
The appeals in the Circuit and High Courts are re-hearings involving the giving of oral evidence by the various witnesses all over again. Not so in the Supreme Court, which is furnished with five full transcripts of the evidence given in the High Court. A transcript is the typewritten verbatim record of everything that was said in the High Court, not only by the witnesses, but by the lawyers and judge also. The costs of these transcripts are considerable as are the other costs of appeal, such as stamp duties and Counsels’ fees.
The Supreme Court might decide the issues upon which the appeal is based and find in favour of the APPELLANT. That will normally be the end of the case. However, they might decide that something happened in the High Court that was so unsatisfactory that a re-trial was required. The case will be sent back down to the High Court to be tried all over again. With this prospect, because of the costs involved, the parties may decide to settle the action, or in the case of the Plaintiff, to give up, assuming the defendant offers reasonable terms on the issue of costs.
However it comes about, a finding in favour of a plaintiff results in the issue of a piece of paper stating that he/she, the plaintiff, is entitled to a stated sum of money from the defendant. This is a far cry from actually collecting that money. This is the reason that ascertaining whether a defendant was insured can be very important. Alternatively, and more practically, it is important that the defendant have sufficient assets to meet the judgement.