Lighting the dark tunnel of litigation: Six tips to get you through

Ever heard the expression “if you can get through life without ever seeing the inside of a courtroom, you’ve done well”?

That expression largely holds true, but unfortunately for many, the inside of a courtroom often becomes an unpleasant reality. To the inexperienced, litigation can seem like a dark, never-ending tunnel, with unexpected surprises around every corner and no end in sight. This does not need to be the case. If you find yourself having to go to court, the following tips and tricks will hopefully shine some light on the dark tunnel of litigation, and help you through the process.

1. Get advice

The most important tip for dealing with litigation is to get legal advice early in the process.

Even if you intend on representing yourself, preliminary legal advice is invaluable. Too often we deal with matters in which parties have delayed getting legal advice, and as a result, those matters become unnecessarily complicated, or crucial issues are overlooked or not dealt with.

Preliminary advice will minimise, as much as you can, the uncertainty inherent in any litigation. It will be tailored to your specific needs and can assist in:

  • identifying the legal basis for bringing or defending a claim;
  • identifying the relative strength of your position and that of the other side;
  • identifying potential areas of risk and/or concern; and
  • providing direction for the remainder of the litigation.

2. Get the basics right

This may seem obvious but you would be surprised how often the basics are overlooked, particularly in matters where people are representing themselves.

For example, if you are bringing a claim, are you bringing it against the correct party? Is your claim against a company, or is it a sole trader who should be a party to the proceedings personally? There can potentially be significant cost implications for issuing court proceedings against an incorrect party.

Another issue to consider is whether you are bringing your claim in the correct court. For example, the Magistrates Court can only deal with matters where the amount being sought is $100,000 or less. If the amount being sought exceeds $100,000, the action must be brought in the District Court or the Supreme Court.

3. Be organised

It doesn’t matter if you are representing yourself or you have instructed lawyers to act on your behalf, being organised is vital.

Ensure that you attend Court hearings when you are meant to. If you aren’t at a hearing which you are meant to be, you will likely have upset the Magistrate or Judge before your hearing has even begun!

If for whatever reason you are unable to attend a hearing, and you do not have solicitors to appear on your behalf, you should contact both the other party and the Court seeking an adjournment. It is important to give as much notice as possible and to explain why you are seeking the adjournment.

It is also important to make sure any documents you have are organised and easily accessible, especially if there are a large number of documents. There are a number of reasons for this. The first is that you never know when you will need to access those documents and it may be important that you can do so quickly. The second reason is that you are also likely to have to produce a list of relevant documents to the other side and the other side can ask to inspect and receive a copy of those documents.

Ensuring any relevant documents are organised and easily accessible will greatly reduce your stress, and make the litigation process as smooth as possible.

4. Have realistic expectations about costs

There is no way around it - litigation is expensive. People often assume that if they are successful in bringing their claim, they are entitled to recover all of their costs. This is rarely the case. Typically, you will only recover a portion of your costs from the other side if you are successful - as a general rule of thumb, you are likely to recover in the order of half to three-quarters of your actual costs. There are of course some exceptions to this rule, but they are less common.

If you are involved in litigation, it is important to regularly revisit how much it will cost you to achieve your desired outcome and whether the costs outweigh the benefits.

Similarly, it is important to consider the non-financial costs that come with litigation. It can be a time-consuming and stressful process for those involved. These non-financial costs can be reduced by engaging lawyers to act on your behalf and guide you through the process.

5. Stay open-minded

It is also important to remain open-minded throughout the court process. This can be in a number of ways. For example, it is counterproductive to oppose obviously correct assertions made by the other side. If the other side contends that the sky is blue, it is not beneficial for you to try and argue that it is in fact green, simply because they are your ‘opposition’. Accept obviously correct factual assertions. Judicial officers tend to look favourably on realistic and open-minded litigants who focus on the issues that are actually in dispute.

Likewise, make sure you are open to pursuing alternative forms of dispute resolution, including mediation and conciliation. You can have settlement discussions at any stage of litigation. Whilst you cannot be forced to agree to resolve the dispute, there is often a benefit in resolving the dispute rather than proceeding to a trial.

6. Get advice

We end up back where we started! We strongly encourage those involved in litigation to engage solicitors to guide them through the litigation process. It is a specialised area that can have a lot of traps and pitfalls, particularly for the inexperienced.

If you are representing yourself, be sure to seek advice if you encounter something you are unsure about. These matters often carry huge implications for the daily lives of the parties, and it is better to clarify concerns or misunderstandings, rather than proceeding down the wrong path because you didn’t want to incur any costs or don’t understand a particular issue.

To speak to a member of our litigation team, please call our office on (08) 8414 3400. 

This article was written by Solicitor, Duncan Soang

Practice Area: Court Litigation & Dispute Resolution

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