Litigation
When A Dispute Boils Over
As a general rule clients seek legal advice either about litigation or non-litigious matters such as due diligence and transactional work. Our focus is commercial litigation and this article discusses some of the typical features involved in litigation. Litigation usually comes about when a formal demand is made or actual proceedings are filed and served on a party. Such matters can resolve between the parties or may require the intervention of the court to bring it to a conclusion.
The Advice Sought
In most cases clients have an idea about the advice they will need and the matters that would need to be addressed. Given that the legal system is incredibly complex and because of the many subspecialties within litigation matters are not as simple as what they may initially seem.
For instance, a client who is interested in getting advice about a breach of contract might find out that the case in fact also involves other areas of the law such as: the Australian Consumer Law, the Corporations Law and when it comes to enforcement Insolvency Law. As a consequence the client finds out there is much more to the case than first imagined and the lawyer thus needs to provide more extensive advice than first anticipated.
Getting All the Facts
In days gone by disputes would involve only a few bits are paper. Photocopiers and computers have changed the amount of information involved in the typical dispute. In most cases clients need to provide a "data dump" that could involve hundreds of emails, letters physically mailed an internal and external documents generated.
Getting all the right documents is not a simple task. Usually it starts with clients providing some of the relevant correspondence and after that information is read further requests will almost certainly be made so that the whole picture can be seen.
Most lawyers try to arrange the information chronologically so that it can be understood as if it was a story.
The Roles of the Parties
Litigation invariably involves conducting various searches to find out who is involved in the dispute, whether they are registered and trading or deregistered/bankrupt. Finding out the exact name of the parties involved is critical as there are serious cost implications for proceeding against the wrong party.
Urgent Relief
Some cases involve the need to approach the court for urgent relief. This usually applies where damages would be inadequate and you have a prima facie case against the other party so that the status quo should be preserved. Typicall, the first step is to send a cease and desist letter to the other side to see if it can be solved without court intervention.
Alternatives to Litigation
There are of course many alternatives to proceeding to judgement. Parties are generally advised to try and explore without prejudice discussions, mediation, arbitration and the like.
Sometimes cases are not capable of resolution between the parties and then the court needs to become involved to help them sort out the dispute.
Case Management
After proceedings are filed they are allocated to a registrar or judge to be case managed. Courts have over time reduced and increased the involvement of parties depending upon various policy considerations. A party should not necessarily assume that once proceedings have been filed it will be free to conduct its case as it wishes. Judges take an active role in managing cases by telling parties what needs to occur and by when that needs to happen. Case management orders range from tidying up pleadings to putting on evidence and setting the matter down for mediation/ trial.
Time Limits
Every case has some form of critical time limit. Sometimes a time limit comes about because of legislation and in other cases because of the facts or court orders previously made. It is very important litigation to understand as soon as possible what the critical dates are in your matter.
How the Principles Apply
a thorough understanding of how the principles apply to your case will enable you to make much better and more informed choices throughout your case. If you have a particularly strong case then being armed with that information will help you settle within the correct range or pursue the matter all the way to trial with greater confidence.
Alternatively, if you have a weak case then this is something best known early on so that you can explore and "exit" early on before racking up a large legal bill. The key of course is to get a thorough and comprehensive initial advice regarding your litigation.
Choosing the Right Court
Once it becomes time to file proceedings it is important that the case is pursued in the right forum. There are many considerations involved ranging from the nature of the matter to the quantum of the dispute. Starting a case in the wrong court can have cost penalties in addition to you potentially losing the right to bring litigation again.
Managing Legal Costs
Ultimately no rational person wants to spend $2 in order to win $1. Whilst this might sound so obvious that it need not be said experience has shown us there are many litigants out there who did not receive this advice. From time to time we have to tell our clients that it simply does not make commercial sense to get lawyers involved in the litigation because the legal costs involved just does not justify it.
Sometimes clients have no choice but to pursue litigation even though they know it can be a expensive and risky course of action. Clients are well advised to try and get a sound understanding of the legal costs and potential exposure at every step of the way so they can make better decisions about pressing on or pulling the plug.
For our lawyers litigation is the key focus so contact us to discuss your case.
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