Most disputes involve common steps. This guide should help you to instruct your commercial litigation lawyers properly so that they can help you more effectively.
Conflicts Check
After you decide that you want to see a lawyer, you probably want to tell the lawyer the whole your story.
Before that can happen, your lawyer needs to do something called a “conflicts check”. Some lawyers brush over this but any lawyer who takes their professional responsibilities seriously will do a proper conflict check.
A conflicts check is used to: -
- identify the client whether a company, trust or natural person;
- identify the other parties to the dispute whether as a company, trust or natural person;
- the likely witnesses who may need to be cross-examined (or otherwise criticised); and
- see if the matter is time critical because of some urgency such as a limitation period (or something else) and if the lawyer cannot help on an urgent basis there might be a conflict.
It is critical for a lawyer to get this information since a lawyer would not want to act against a former or current client, or against a family member or friend as examples of how a conflict of interest could arise.
Costs Agreement
Preparing a scope of works for a dispute can only really be done once enough information is known about the dispute. Working out how much a matter could cost simply takes a lot of time and cannot generally be answered after a 30-minute phone conversation. Often the best approach is to stage a matter so the costs at each milestone can be set.
Initial Conference
The initial conference is often a meet a greet opportunity to see if you and your lawyer can work together to solve the dispute.
Such conference gives the client an idea of the nature of the case, and the likely costs that could be involved.
Quite often the initial conference is followed with a request for further information as the lawyer learns more about what is needed. It is important to assist your lawyer by providing any information requested.
Gathering the Information
Modern disputes involve a lot of "paperwork".
Much of the information is in digital form so that some care is needed in gathering it all. Here are some helpful hints as to what may be needed.
- Chronology - Prepare a chronology, that is in date and time order, setting out what happened
- Family tree - This is also known as a dramatis personae or explanation of who is who in respect of the problem. This can be drawn to show the relationship between the parties.
- Diagrams - Often a map or diagram is useful to show where there problem occured e.g. an arial shot of a farm in a case about a boundary dispute
- Emails - We typically ask our clients to simply drag the source emails from their inbox into a folder on a USB to give to us. With these source emails we can prepare the relevant client documents in chronological order with attachments behind each covering email. Our software can also identify duplicate pages but we need the source emails.
- Letters sent or mailed to you - Sometimes letters from the other side are physically mailed (or perhaps served) on you. This can be especially important if it is a letter of demand or notice of breach.
- Contracts - If there is a contract e.g. a lease or an insurance policy then a copy should be obtained and given to your lawyer.
- Statements, police reports, expert evidence or video material - In the event that such additional material exists it should be provided.
- Financial documents - the records of a business or individual can be important for many different types of cases such as in insolvent trading cases or where tax returns are needed to prove loss.
- Court documents - if the matter has reached the stage where litigation is on foot then the court processes are very important.
- Evidence of loss - what documents or material explain your loss / damage? e.g. wage slipts, receipts for out-of-pocket expenses etc.
It Doesn't Matter What You Know - All that Matters is What You Can Prove!
One of the more frustrating realities of litigation for clients is that what you know does not matter. When it comes to disputes the only thing that matters is what you can prove with ADMISSIBLE EVIDENCE.
In complex matters this is a critical issue and it may be necessary to use a "Proof Making Model" to determine if you evidence can make out your claim or defence. Sometimes, an advice on evidence is necessary and is usually provided by counsel.
* Source - College of Law NSW
Advising the Client
Once the information has been collected your lawyer is in a position to review all the material and advise you as required.
It is at this stage that your lawyer can say give a preliminary view about: -
- whether you have a claim (or a defence to a claim)
- the likely costs to take your matter to a conclusion
- how long it will take for the dispute to be finalised by trial (unless it settles beforehand).
Remember that if a claim / defence is for damages your lawyer must firstly form the view that your case has reasonably prospects of success. It is not permissible for a lawyer to file a claim if it lacks such prospects [see: cl 4 of Sch 2 of the Application Act].
To form a full view all the evidence needs to be seen, and that means the evidence from the other side too. As evidence changes right up until the time of the hearing it is likely that opinions will also change as information is added. That's litigation and for these reasons it is known to be expensive and uncertain.
For our lawyers litigation is a key focus area so call us to discuss your case.
Talk to a Dispute Lawyer today!
* Disclaimer:- This publication contains general information which may not suit your particular needs or circumstances. It may be summarised and include generalisations. Details that may be important in your specific circumstances might not be included. Litigant strives to ensure that the information in this publication is accurate and up-to-date, but does not represent or guarantee that it is accurate, reliable, current, complete or suitable. You should independently evaluate and verify the accuracy, reliability, currency, completeness and suitability of the information, before you rely on it. The information in this publication is not legal or other professional advice. You should obtain independent legal or professional advice that is tailored to your particular circumstances if you have concerns. To the maximum extent permitted by law, Litigant excludes liability for any loss, however caused (including by negligence), relating to or arising directly or indirectly from using or relying on any content in this publication. Litigant asserts copyright over the content of this publication.