16 FEBRUARY 2016
, CONTESTING A WILL , ESTATE DISPUTES , LITIGATION & DISPUTE RESOLUTION
Court cases turn on the relative merits of each party’s position and judges make their decisions based on the application of the law to the facts, as indeed they should. However there are 7 fundamental factors which, if handled correctly, will assist you in putting the merits of your position to the judge in the best possible light.
When considering these factors it is important to put yourself in the shoes of the judge. You may know what kind of person you are and why your position is the correct one, but the judge has not yet had the opportunity to form a view on these points. As the court is a busy place, there is little time available in which to do so and anything you can do to streamline the process or cut to the heart of the matter will be appreciated by the judge and will result in a favourable impression of you and your argument.
Your position will be set out in your statement of claim or defence and will be supported by your written evidence. Properly drafted documents which highlight the important points help the judge to quickly grasp the nature of the dispute and the issues which need to be decided. Affidavits or witness statements which comply with the rules of evidence give rise to fewer objections from the other side regarding the form or admissibility of that evidence which can take up a great deal of the court’s time on the day of the hearing. The judge appreciates accuracy, efficiency and a tightly-run ship.
There may be several issues in dispute between the parties when the dispute first arises. In the time between the statement of claim being filed and the final hearing, any issues which can be resolved between the parties without requiring determination by the court, should be. This saves the court time and resources.An offer of compromise can assist in this way by showing that you were willing to resolve the dispute at an earlier date without requiring the court’s intervention. If the offer is rejected and, whether you win or lose, the offer would have provided the other side with a better outcome than the judge’s eventual decision; you will have a good argument for the other side paying a higher proportion of your costs from the date of the offer. This ties in to the 3rd factor.
Court cases are often fraught with high emotion and parties in dispute typically are not pre-disposed to do any favours for each other. However, it is to your advantage at a final hearing if the judge can see from a review of the court file that you have been reasonable in your conduct of the matter throughout.For example, if the file reveals that one side has been obstructive and difficult, wasted the court’s time with frivolous applications or issued unnecessarily invasive subpoenas for their opponent’s private documents then the judge will likely be inclined to favour the other party who has conducted themselves and the proceedings more reasonably.
A court hearing is a significant event for all concerned. The judge and court staff as well as the barristers, solicitors, parties and witnesses involved in the proceedings have all taken the time to be present in order to resolve the dispute. If the hearing is held up by the tardiness of one person and the court is forced to wait for that person to arrive then the judge is likely to begin the hearing with an unfavourable view of that party.
The court is an old institution with a great deal of tradition behind it. Some conventions, such as bowing to the bench when entering or leaving a courtroom while the judge is sitting, are not obvious to those who do not spend a great deal of time at court. However, it should be obvious to anyone that a court is a formal place and that certain standards of dress are appropriate when attending. The judge will not look kindly on those who, by their appearance and conduct, appear to treat the court and its proceedings with disrespect.
The court’s resources are limited; the judge is busy and typically has a lot to get through in a short space of time. Anything which makes the judge’s job easier will be appreciated. The party who produces an indexed, page numbered bundle of all of the relevant evidence and documents with enough copies for everyone involved will make a good impression on the judge. It is far easier for a judge suddenly presented with a large volume of evidence to be directed to “the letter on page 49” than it is to find “the letter in John’s affidavit, somewhere near the back. The one with the big logo in the corner.”
A hearing before a court is, by its nature, a dispute and parties are not expected to agree with one another or to like one another but the court system does operate on the right of all parties to be heard. The judge will not tolerate any person cutting off, speaking over the top of, criticising or deriding any other person while they are addressing the court. Both parties will have the opportunity to be heard on all issues and the judge will look favourably on those who conduct themselves with courtesy during the hearing.
Whether you are a self-represented litigant or retain a solicitor to act on your behalf, keeping these factors in mind when preparing for and appearing at court will stand you in good stead. In many situations the judge will have a great deal of discretion including in the judgment handed down or an order for costs in favour of a party and it will always be to your advantage to be seen as a well-prepared, respectful and reasonable person when seeking the court’s assistance in resolving your dispute.