Litigation is a formal and contentious process, usually takes place in a court room, presided by a judge and without a jury. The steps involved in litigation typically include the following:
- Commencement pleadings: this involves the filing of a statement of claim or application in some jurisdiction by one party and a defence or response by the other party.
- Disclosure of documents by both parties.
- Gathering and exchange of evidence (including expert evidence).
- Trial: the case is presented before the court
- Judgment: the judge evaluates the evidence and legal arguments presented trial to make a decision on the matter.
- Appeal(s): if either party is dissatisfied with the judgment, they may choose to appeal it to a higher court for review.
Throughout this process, there may be a number of mentions and directions hearings before the judge along the way. In cases of interlocutory disputes about how the litigation should proceed, either party may seek specific orders to resolve these matters promptly. It is important to note that such applications can increase the overall cost of litigation but may expedite reaching a resolution for the dispute at hand.
Pleadings
Both parties involved in a litigation case have the responsibility to present their arguments for trial. The plaintiff, who initiates the legal action, must outline all the allegations against the defendant in a statement of claim or application. On the other hand, the defendant must provide a defense and response that explains why they should not be held liable for the accusations made against them or state their case. The purpose of this process is to prevent any surprises during trial and ensure transparency between both parties.
Typically, pleadings only consist of relevant facts that support each party’s case and do not include evidence to prove those facts. The purpose of pleadings is to narrow down and define the issues that need resolution, establish guidelines for disclosing information, and determine what evidence is relevant to the case at hand.
Disclosures
This is sometimes called “discovering”. It requires the party to assemble, list and disclose any documents on which it intends to rely, or which are relevant to an issue in dispute between the parties. A party cannot only disclose those documents that adversely affect another party’s case. Parties are required to also disclose relevant documents that support another party’s case even if those documents may harm its own case.
Evidence and examination of witnesses
Generally, witnesses will be called by the parties to give evidence at trial. They will then need to be available for cross-examination or re-examination at trial. In some jurisdictions, the evidence may be given prior to trial in the form of a statement or affidavit. Knowingly giving false testimony that touches on a material matter, either orally or in writing, is a crime punishable by imprisonment.
Expert evidence are expected to only give evidence about matters within their area of expertise, although this does include allowing them to express an expert opinion about a matter, whilst remaining impartial and not act as an advocate for the party that engaged them.
In some jurisdictions (e.g. the Planning & Environment Court of Queensland) the parties involved in a conflict are often instructed to coordinate with their respective experts and hold pre-trial joint conferences. The purpose of these conferences is to encourage collaboration between the experts and produce a joint expert report. This report outlines the areas of agreement and disagreement, with the intention of narrowing down any conflicting issues that could potentially shorten the trial.
Alternative dispute resolution (ADR)
Depending on the jurisdiction and the type of matter in dispute (e.g. family law matters), the parties may be required to take genuine steps to resolve the dispute before they can file proceedings in court.
In some matters, the court may order the parties to participate in an alternative dispute resolution process, such as a mediation or a case appraisal with an assistance of an independent third party. Those processes are usually conducted on a “without prejudice” basis and although neither is binding on the parties in the same way as a judgement, they do afford the parities an opportunity to get together to attempt to resolve the matter.
Obviously, the parties are allowed to get together at any stage for a without prejudice conference to attempt to settle the dispute without the need for a fully contested adjudication.
Trial and Appeal
A trial will typically be conducted in open court before a judge. It is common for the parties to enlist the services of barristers who possess specialized skills in advocacy and presenting cases, as well as extensive knowledge of court procedures and evidentiary rules.
The judge carefully examines all admissible evidence presented during the trial before making a decision. A written judgment is then delivered, detailing the judge’s reasoning for their decision. This requires a thorough assessment of all matters disputed between the parties involved.
If either party believes that there are valid reasons for appeal such as an error of law, they may have the option to file an appeal against the judgment. The decision on the appeal will then be determined by a higher court. It is important to note that there are strict time limits for filing an appeal, and it is not guaranteed that the right to apply for an appeal exists in all jurisdictions. For example, in some jurisdictions, permission must be granted by the higher court before the appeal can be heard.
Conclusion
Engaging in litigation is a serious matter that can cause immense stress and emotional exhaustion. It is crucial to carefully consider the implications before embarking on this path. Once litigation begins, you relinquish some control as you become subject to the court’s processes, procedures, and timelines. Ceasing litigation is not a simple task either, should you have a change of heart or find it too burdensome or expensive. In certain cases, you may even be required to cover the opposing party’s legal expenses up until that point before the court grants permission for discontinuation.
This article provides general information only and you should obtain professional advice relevant to your circumstances. We always recommend you seek legal advice from an experienced lawyer before entering into any parenting agreement.
If you or someone you know wants more information or needs help or advice, please contact us on 07 3733 1390 or email [email protected].