17.2 Motions, Directed Verdict/Non-Suit & Building the Appellate Record

A hearing rarely runs from opening to closing without interruption. Rulings on motions and objections happen in real time, and each ruling can change what evidence is actually available to prove — or defend — the case. This section covers the mechanics of in-hearing motions, the non-suit/directed-verdict motion specifically, how to preserve objections properly, and why the record you build during the hearing is the only thing an appellate court will ever see.

Motions and Applications: Getting the Terminology Right

The P1 exam distinguishes between an application (an originating process used to start certain proceedings, or a request for relief from a tribunal where no separate action exists) and a motion (a request for an order within an existing proceeding). Once a Small Claims claim, a POA information, or a tribunal application is already before an adjudicator, virtually every further request for relief is a motion.

Common In-Hearing Motions

The Non-Suit / Directed Verdict Motion

This is one of the most heavily tested procedural moves in the litigation-process competency area. At the close of the plaintiff's or prosecution's case, the defence may move for a non-suit (in civil matters) or a directed verdict of acquittal / "no evidence" motion (in POA and other regulatory proceedings), arguing that the case should end immediately because the other side has not put in evidence capable of proving every essential element.

The "Taken at Its Highest" Test

The adjudicator does not weigh credibility or decide which version of events is more believable at this stage. Instead, the test is whether the evidence, taken at its highest (assumed to be true and given its most favourable interpretation for the party who called it), could support a finding on every essential element of the claim or charge. If even one essential element has no supporting evidence at all, the motion should succeed; if there is some evidence on every element — however thin — the motion must fail, because weighing that evidence is reserved for the end of the case, not the middle of it.

Example: In a negligence claim, if the plaintiff called no evidence at all on causation, a non-suit motion targeting causation should succeed even if the plaintiff's evidence on duty of care and breach was strong.

The Election Consequence

In some forums, if a non-suit motion is dismissed, the defence must then decide whether to call evidence. Calling evidence can affect how favourably the appellate standard treats a later appeal, because the adjudicator's final decision will then rest on the whole record, not just the plaintiff's case taken at its highest. Paralegals should understand this strategic fork even in forums — like most Small Claims and POA trials — where the "election" issue is less prominent because there is no jury to protect from an early, case-ending ruling.

Making and Preserving Objections

An objection that is never raised, or raised too late, is effectively an objection that never happened for appeal purposes.

The Anatomy of a Proper Objection

1. Object promptly — before the answer is given, or as soon as the problem becomes apparent
2. State the ground clearly — "I object; that calls for hearsay" or "I object; that question is leading on a contested point"
3. Get a ruling — ask the adjudicator to rule, and note the ruling and reasons if given
4. Note any exception preserved — if overruled, confirm the objection and ruling are captured for the record

Why Timing Controls Everything

Appellate review is generally confined to the record made below. If a paralegal fails to object at the time inadmissible evidence is introduced, many appellate bodies will treat the point as waived, absent a rare exception for a truly fundamental error. This is why silence in the moment is one of the costliest mistakes a paralegal can make at a hearing — it can foreclose an otherwise winning appeal issue permanently.

Building the Record for a Possible Appeal

The record is everything an appellate court or reviewing body can look at later. It typically includes:

• The transcript of the oral hearing (or the adjudicator's notes/audio recording, where no transcript service exists)
• The exhibits actually admitted into evidence
• Any endorsements made on the file and the adjudicator's written or oral reasons
• The formal order or judgment issued at the end

A paralegal who wants to preserve an appeal option should routinely request that reasons be given (or endorsed) rather than accepting a bare result, and should confirm early how to order a transcript and what it will cost, since transcript-ordering deadlines are often tied tightly to the appeal period itself.

Revising Strategy in Real Time

A ruling on a motion or an objection is not just a procedural event — it changes the evidentiary landscape the paralegal must work within for the rest of the hearing. If a key document is excluded, the theory of the case may need to shift to rely more heavily on witness testimony. If a non-suit motion narrows the case to a single surviving element, closing submissions should focus there rather than repeating points that are no longer contested. Competent advocacy on the P1 exam's fact patterns means recognizing these pivot points, not mechanically running a pre-written script regardless of what has just happened in the room.