Step 14: The Hearing
Once the Directions have all been dealt with the case will be ready for the final hearing.
Representation
You will probably be planning to present the case in Court yourself though you can choose to be represented by either a qualified lawyer or someone without legal training known as a "lay representative" (such as a friend, relation or perhaps a case worker from an advice centre).
Hearings in Public
Like other county court trials most cases in the small claims court are heard in public. However although members of the general public are entitled to attend and observe it is extremely rare for anyone to do so.
The Courtroom
The rooms in which small claims court hearings take place come in many shapes and sizes. Forget what you may have seen on the TV. Hearings normally take place in the Judge's office (often referred to as "chambers") which bears little resemblance to most people's idea of a courtroom.
The Judge and the parties are usually seated around a table. The usher or District Judge will probably show you where to sit.
Etiquette
Hearings are informal, so there is no need to stand when presenting your case.
No one will be wearing wigs or gowns. You should dress smartly yourself choosing clothes you feel comfortable in. When you speak to the District Judge call her "madam" if she is female or "sir" if it is a man.
Preparation
Thorough preparation is the key to success. Even experienced lawyers and advocates can come unstuck if they do not prepare properly for a hearing - so make sure you do your homework.
Read through the papers the night before and then again shortly before the hearing. If you think it will help, make notes and checklists. Make sure you know exactly where you are supposed to go. Arrive in good tine so you are relaxed and can take part in any last minute, doorstep negotiations if the opportunity arises.
If you are calling any witnesses to give evidence in person make sure they are familiar with the arrangements and are fully briefed about their role in the case.
Evidence and Procedure
As explained earlier in this guide the burden of proof lies with the Claimant. The onus is on you to prove your claim "on the balance of probabilities".
The strict rules of evidence, however, do not apply, which means that you don't need to have a detailed grasp of the law of evidence - a difficult subject even for professional lawyers!
The District Judge will not generally expect evidence to be given on oath and can adopt any method of procedure which is considered fair. Consequently procedural and evidential practice varies enormously from Court to Court.
Unlike other civil courts the small claims procedure is "inquisitorial" rather than "adversarial". Again practice varies but be prepared for the Judge to be interventionist. Questions will probably be asked and cross examination may be limited.
Presenting your Case
Although the procedure is informal, don't be over familiar.
Avoid the temptation to act like a lawyer. You are not Perry Mason or Ally McBeal, and you probably wouldn't fair any better even if you were.
Similarly steer clear of Latin and legal clinches. Phrases such as "I put it to you" and "to sum up me lud" should be left to the movies. This isn't a remake of 12 Angry Men.
The order of play is not fixed and will be dictated by the District Judge. However as Claimant you will probably be invited to present your case first. Remember the Judge will have read the papers and should already be familiar with the issues in dispute. Acknowledge this fact by limiting your remarks to a brief summary of your case.
Don't overload the Court with irrelevant facts. It is better to make a few good points well than bombard the Judge with a succession of poorly defined and vague arguments which are barely relevant to the issues in dispute.
Body language is important . Give the right signals. Practice at home in front of the mirror beforehand. Try to maintain eye contact throughout.
Stay cool. Don't lose it with your opponent and certainly not with the Judge! Even if you are provoked you must keep your temper.
Don't be self righteous, indignant or dogmatic. Judges are not sympathetic to overtly aggressive or argumentative litigants. So whenever you can, show the Judge that you are a fair minded individual. If you come across as a reasonable person it's likely to colour the Judge's view of your casein a positive way.
Don't exaggerate. It can often be tempting to do so in order to make sure that the point goes home. However if it's a good point the Judge will recognise it. Exaggeration will lose you creditability in the eyes of the Court.
Finally speak clearly and don't gabble. Present your case coherently and logically. The Judge will probably be taking notes as you speak, so bear that in mind.
Cross Examination
Cross examination allows a party to put questions to the other side and any witnesses. Skilful cross examination can be very effective, enabling the advocate to cast doubt on the opponent's case and elicit facts and comments helpful to your own. However it is not an easy art to learn.
Novices should limit the number of questions they ask and follow that old adage of advocacy - "never ask a question to which you don't already know the answer"!
If you are tempted to hone your cross examination skills then
· Take notes of the evidence as it's given and listen carefully.
· Look for inconsistencies in the witnesses accounts.
· Don't be sarcastic or aggressive.
If you end up on the receiving end of cross examination then bear in mind the following hints:-
· Listen carefully to the question.
· Ask for clarification of the question if you don't understand it. Answer questions thoughtfully and truthfully.
· Don't be evasive, but equally don't volunteer information that hasn't been asked for.
· Be prepared to answer questions from the Judge.
DYJ's Top 10 Tips of Advocacy
This is our top ten of the latest advocacy tips.
1. Prepare thoroughly.
2. Sound confident
3. Keep it simple.
4. Stick to your best points.
5. Take it slowly.
6. Know when to stop.
7. Remain claim.
8. Don't exaggerate.
9. Listen carefully.
10. Be courteous.
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