Lawsuit Defence

Don’t ignore it. You have a critical time period within which to respond. After 28 days you may lose your right to submit a defence before further proceedings commence.

Don’t risk it, the results may not be pretty.

If you ignore a Court document, you may find yourself on the receiving end of a judgment. Once a (monetary) judgment has been made, the plaintiff (the person suing) may have the following avenues to pursue the defendant (the person being sued) in enforcing the judgment:

• A full examination of your income, expenses, assets and liabilities with an aim of recovering the judgment;
• A garnishee order, which may require the defendant’s employer or bank to deduct certain amounts of money from the defendant’s wages or bank account;
• A warrant for sale or seizure of the defendant’s property in an attempt to liquidate those assets to satisdy the judgment; or
• Bankruptcy proceedings.

Even after a creditor has commenced legal proceedings, you may still be able to pay off the debt owed. Although, the longer you leave it the more expensive the payout is likely to be.

If a creditor has accrued legal expenses in the pursuit of monies owed to them it is common that they will demand their legal fees be paid in addition to the debt owed.

Should you get the opportunity to repay your debt (or the opportunity to discuss repayment plans), be sure to get it formalised, and in writing.

You should engage a lawyer to assist in drafting the agreement so that your rights are still being protected, and to ensure a Notice of Discontinuance is filed once payment has been made. This will stop any further Court action against you (in relation to that debt).

You’ve seen it on TV time and time again, where a lawyer marches in at the last minute and saves the day.

What the on-screen scenarios don’t show are the hours of preparation that goes into your day at Court.

Here’s a run down of what’s involved before you get to court and how a lawyer can support you:

1. The Initial Demand

As a result of an unresolved dispute, usually one party will make an informal demand against the other. At this stage informal negotiations may (or may not) ensue. A lawyer can help you navigate whether what you are offering/being offered is realistic. They will also help you avoid making comments that could be used against you in the event the parties do not reach a resolution.

2. The Lawyer’s Letter

When negotiation fails, one party will traditionally request their lawyer send a formal letter of demand. The ”lawyer’s letter” serves many purposes, including to demonstrate to the other party that this dispute is serious, is to get a formal response from the other party and to determine the other party’s position to the dispute More often than not, once a “lawyer’s letter” is issued, the other party will also retain legal representation.

3. The Pre-Litigation Discussion

Ahead of formal litigation there is often (but not always) a meeting between those in dispute and their respective lawyers in a final effort to resolve the dispute.

Legal representation at this juncture is a must to ensure you are not withholding or disclosing information that may be detrimental to your case should the situation escalate.

4. The Move to Formal Litigation

When informal attempts at resolution fail we enter into a formal litigation process – this usually includes where one party files a claim against the other.

The support of a lawyer will assist when completing and preparing the relevant documents to file with the Court.

5. The Response

After proceedings have been filed, the defendant (the party being sued) has a set period of time within which to submit their response.
Having representation ensures you won’t miss critical deadlines, and ensures you are aware of all court processes that can help in resolving your claim quickly. Ignoring a claim can have serious repercussions.

6. The Discovery Phase

This is an information gathering phase whereby both parties will put forward evidence that will support their case. Not all information should or will be disclosed. Lawyers can help you navigate what you should and should not disclose.

7. The Motions

Ahead of your time in court, either party may submit ‘motions’ to compel the opposition to do something that ends the battle early. Often one party will endeavour to have the court or an arbitrator decide the matter without the need for trial. A lawyer can support the submission of appropriate motions for your circumstance.

8. The Pre-Trial Conference

We’re not quite in the court room yet. In a last effort to avoid a final showdown and arrive at settlement, the court generally requires a pre-trial conference involving the disputing parties.

Your lawyer will be able to deliver you much needed advice and support through this conference.

It’s crunch time and you and your lawyer will be gearing up for what can often be a heated battle. Present at Court will be the disputing parties, their legal representation, any witnesses and the judge and jury (not always).

During the trial, facts will be presented and testimonies heard. Once all evidence has been presented, the judge (or jury) will come to a judgment.