Courts exist to help you enforce your rights in contract disputes, debt recovery, disputes over wills and estates, business disputes, etc. But if you are not properly prepared then suing or being sued (called “litigation”), even if you end up winning , can be a very painful and difficult process. Therefore please note the following:
Get a lawyer with enough experience to properly tell you the strength of your case, what the steps in the matter will be and what the risks are. If he or she advises you to compromise then you must consider settling the case as fast as you can since your lawyer has likely been in this situation before. Do you feel that your lawyer can recognise a good commercial compromise given the risks that come with litigation?
Court matters take a very long time to come to trial. There are many factors that will affect how long you wait to get to a hearing. One of those factors is the question of which Court is going to hear your matter because some Courts process matters and give you a hearing date faster than others. Has your lawyer given you sensible, likely time-lines for your matter?
The Courts have rules about the proper place to conduct a hearing. Your opposition may be able to persuade the Court that the matter should be heard in a different Court, or even in a different state. The logistics can suddenly become a very big problem for you. Has your lawyer discussed whether your matter could be moved?
Unlike criminal matters, civil or commercial litigation is decided by a judge rather than a jury. Even with a judge deciding the outcome litigation can be hard to predict because you cannot know with certainty what evidence your opposition will present or which side's evidence the judge will find more persuasive. Have your lawyers promised you complete success or have they been brutally honest with you regarding the strength of your evidence?
No matter what the facts of your case, you are going to lose if you cannot produce “admissible evidence”. This means evidence supporting your case in a form acceptable to the Court. Your evidence also has to be relevant to your case, and be persuasive. Has your lawyer properly explained to you why he or she (and the barrister) seem to be ignoring the “killer points” you want to make to the judge?
Preparation for trial is extremely labour intensive and therefore expensive. In many cases the legal costs end up exceeding the amount of money in dispute. Has your lawyer given you a properly reasoned and calculated estimate of the costs you will be facing in a worst case scenario, or did they seem to pull a figure out of thin air?
If you lose there is often no automatic right to appeal. And even if you have grounds to appeal you could lose again. And that means more costs. Does your lawyer seem to have the experience to be able to properly advise you when it is time to call it quits?
Generally in litigation the loser of the case has to pay the legal costs of both sides, but in some courts each party pays their own costs regardless of the outcome. Has your lawyer advised you on whether your costs may be recoverable and given you an early, reasonable estimate of not only your costs, but also your opposition’s likely costs?
Great news! You won the case! But you can then discover that the person you sued has no money, and that even if you were to bankrupt them you won’t get paid anything. Has your lawyer given you an early assessment of whether you are suing a “man of straw”?
If you have to litigate and you can’t settle quickly then you and your lawyer are going to be spending a lot of time with one another. There will be a lot of waiting time when nothing seems to be happening. It will get frustrating. Does it seem that your lawyer is never available, or doesn’t return calls or emails, or is he or she otherwise not good at communicating with you?
It is important to give your lawyer ALL of the facts of your matter. Things you do not think are important may be crucial. Negative things you may not want to admit may be known to the other side and can be minimised if your lawyer is aware of them but can be disastrous for your case if you keep them secret and your lawyer is caught off guard. Almost all of your communication with your lawyer is secret and confidential (known as "privileged") so you do not have to worry about your information going any further. Remember, your lawyer is on your side. Have you told your lawyer everything?
Part of litigation is the examination of the other party’s documents. These days it is not uncommon for there to be thousands of emails that need to be searched for useful evidence. This takes time, and in litigation time is money. Has your lawyer got junior lawyers who can do appropriate parts of the litigation at a cheaper rate?
The majority of commercial litigation and estate disputes settle prior to the hearing, but your opposition may never compromise even if their case is weak. Or the parties may be litigating because of the “principle of the thing”. In either case, once you are in litigation you may well end up thinking “Will I ever get out of this?” Has your lawyer suggested some exit strategies that could be acceptable to you in case your once seemingly strong case starts looking a bit sick?
In litigation your lawyer will spend a lot of time on preparation but this means that you also will be devoting a lot of time to it. Doing what you can do yourself will also help minimise your costs. You will have to collect evidence, get it into a form suitable to the Court, analyse the evidence being presented by your opposition and obtain and prepare evidence in reply. Has your lawyer (or the barrister) given you an “advice on evidence” so you are not chasing red herrings?
Litigation can get personal. Corporations have no personal feelings when they sue one another. But in some litigation it is friends or family going head to head in the Court room. It can be very emotional. Does your lawyer remind you when you are letting your emotions get in the way of logical decision making and losing sight of your own objectives?
Sometimes the amount being claimed in litigation is ridiculous. You can be severely shaken by the amount claimed (or cross-claimed). But it may be just that the “jurisdictional limit” must be used. Is your lawyer experienced enough to let you know when the other side is using shock tactics?
Sometimes litigation is commenced and then settled by the parties without their lawyer and so they wonder why they ever engaged one. This is not unusual, and it is a good thing. People often start litigation because they have argued themselves to a standstill and realise they cannot resolve it alone. You can engage a lawyer to give your opposition the message that you will enforce your rights in Court if you have to. Can your lawyer negotiate an early, satisfactory compromise, or will they otherwise skilfully “soften up” the other party and get them back to the negotiating table so that you can get the deal done?
You must get a lawyer that will guide you through the many traps and pitfalls of litigation, a lawyer who will fight your case skilfully all the way to the hearing if necessary, and who will do it aggressively if necessary, but who will also be able to recommend a reasonable commercial settlement if appropriate.
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