Filing or Defending a Lawsuit

Before you rush to have your day in court be sure you’ve got what it takes to see it through, and that you have considered the highs and lows associated with litigation. Concerned you’ll come out bruised and broken, then maybe going to court is not the best course of action.

• Have you considered alternative dispute resolution pathways?
• Have you consulted a lawyer and know exactly what laws apply to you and your dispute?
• Have you got a truckload of evidence and a cooperative witness to support you?
• Have you done your numbers and are financially ready to see the process from start to finish?
• Does the other side have sufficient assets to satisfy a judgment?

Whilst litigation proceedings often follow a series of set steps, common patterns and strict rules, there are many variables that affect each stage of the process, which make navigating from beginning to end and arriving at a positive outcome all the more complex.

When a good match is met between a lawyer and a client you instantly increase your chances of success. Regardless of whether you’re being pursued or are pursuing another, you provide the wealth of information relevant to the circumstance and your lawyer will be the one to make meaning of that information.

Thinking about self-representation? Think again. Statistically speaking, the majority of people who go unrepresented don’t come out on top. The law is a complex arena and when you’re dealing with time consuming, expensive and complex litigation proceedings, you’ll want to be sure you know your rights and obligations.

Step 1: Before you can get the ball rolling on court proceedings, you (or the other side) will need to determine which court or tribunal has jurisdiction to hear their matter. Different entities have different jurisdictions and filing your claim with the wrong one can cause a host of complications.

Step 2: Once you know where you’re filing, you can proceed with filing a Claim and Statement of Claim (the Claim). The Claim should clearly identify the circumstances that have lead to a dispute, the breach of the relevant law(s) and the remedy that is being pursued.

Step 3: Once the Claim has been filed, it is time to effect service. That is, you will need to serve the Claim, personally or otherwise (depending on who the other side is) within a certain timeframe.

Step 4: After being served with a Claim, the defendant (person being pursued) has 28 days (this may vary between jurisdictions) to respond with their version of events as to the dispute, and a counterclaim, if any. If the Claim is ignored and no defence is filed within the required timeframe, generally a judgment in your favour (or the plaintiff’s favour) can be requested without the need for a hearing.

Step 5: Assuming the defendant has responded to the Claim, the next phase involves disclosure and discovery. During this period all parties will explore and probe into the particulars of the other party’s pleadings. Traditionally there are three stages to this, including the search for relevant documentation, the provision of a list of documents to the other party (and vice versa) and the provision of any documents that have been requested. At this stage parties may issue subpoenas to third parties seeking discovery of certain documents.

Step 6: Once steps 1-5 have been completed one of the parties can seek a court date. Before the matter proceeds to trial, the Court will usually require the parties to attend a pre-trial conference. This will allow the parties to narrow down the issues in dispute, and see if a resolution can be reached without the need for trial.

A court room is a space where all parties are provided with an opportunity to provide evidence that supports their side of the case, including physical evidence and witness testimony. When it comes to court, what started out as a seemingly black and white case can soon turn to a shade of grey when mounting evidence and diverse perspectives come into play. As such, litigation can last anywhere from a day to years, depending on the complexity and diversity of the matter. In most circumstances, the final outcome of the case will be determined by a magistrate or judge.

Parties can stop the Court proceedings by settling at any time, which is often strongly encouraged by the courts and lawyers alike. It is common that the Court will order parties to attend a settlement conference or to engage in mediation to try to resolve the dispute prior to trial. However, your a lawyer will support the most commercially viable solution for their client early on in the process and will do its best, where possible, to avoid exposing their clients to drawn out, expensive and stressful formal legal proceedings. Consequently, most cases settle before reaching the final stage.

If you find yourself at the receiving end of a lawsuit, you will need advice on a number of issues, including:

• Whether a contract exists;
• What the rights and obligations are in the contract;
• Is the contract legally enforceable?
• Will or can the conduct of the other party affect the case?
• Is there any way to minimise or avoid liability?
• Can I negotiate?

The best way to defend yourself in Court is to hire a confident, highly-experienced litigation lawyer. The earlier, the better – don’t delay!