Are you looking for information about litigation? The purpose of this article is to explain the concept of litigation in general. It will provide stories to help you understand the process.
In law school, the subject is called “civil procedure.” This means understanding the many steps required to bring a case to trial. It also gets into what happens at a trial, and what could happen afterwards.
Because of Hollywood movies, people think that litigation, or lawsuits, resolve in a matter of months. Maybe you get served documents, and then there is a trial date set next month.
If you win the lawsuit, the judge will throw the other person in jail until they pay you, right?
This is how it happens in the movies, and never in real life. Lawsuits can go on for 6 months to 6 years. It depends on so many different factors. We are going to explain what you need to know about litigation.
Just because things are complex, don’t assume that it means you can’t collect the money that you are owed. Just because you got sued, don’t assume that you can easily have the case dismissed.
In this article, we will use the terms action, lawsuit, and litigation interchangeably. They all mean the same thing.
This content is focused on people in the “British legal system” countries. This includes Canada, the US, Australia, South Africa, and many others.
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What Can You Sue Someone For?
There is a long list. But we included some of the most common reasons for lawsuits below.
- Someone owes you money (from a loan)
- Failed investments
- Breach of Contract (someone doesn’t fulfill their side of the deal)
- Libel or Slander (this is when someone spreads lies about you, normally on the internet)
- Someone damages your property
- Personal injury (car crashes and dog bites etc)
- Professional Malpractice (this is a focus and special area of the law)
- Fraud (often part of investment disputes)
- Negligence and misrepresentations
- Nuisance (normally part of real estate disputes)
- Employment disputes
There are many other things that people are sue and be sued for.
How Does A Litigation Start?
Lawsuits start with research, not with the filing of a claim. Do not quickly throw something on a claim, and rush to the courthouse to file it. This is a very important legal document.
If you rush it and miss things, it’s going to make your chances of winning much harder at trial. You also might have to ask the court to allow you to make changes to your claim.
This is called amending pleadings. Sometimes if your claim is so poorly drafted, the other side can try and strike your pleading.
This means that the lawyer on the other side, normally for the defence, files an application (or motion) with the courts. It says that assuming everything in your claim is true (even though they are not admitting it), the plaintiff (or person filing the lawsuit) still wouldn’t win.
If your claim gets struck, or dismissed on the motion, then it’s likely because your legal basis was weak. Basically, even if the facts were true, there’s no law saying that the defendant would be responsible.
It’s easiest to learn from examples.
Let’s say that someone takes a picture of you, and uses it on their website. You get very upset because while you did post it to the internet once, you no longer like the picture. Plus, even though you never got a trademark for the picture, they should have asked you first.
Filing The Claim At The Courthouse
That would have been the decent thing to do. When you ask them to take the photo down, they ignore you. You hope that a judge will force them to take the photo down, or throw them in jail.
You decide that you should receive $100,000, because they took your picture without permission, and they should be punished. It would also be great to get more money, so you can buy a Tesla and go on vacation to Las Vegas.
Since the amount of the claim is more than $35,000, you must file in Supreme Court. You get the Notice of Civil Claim, and you fill out the facts.
“The website abc.com took my photo and put it on their website. I asked them to take it down, but they said no. The court should punish them and give me $100K or throw them in jail.”
You then just fill out “privacy laws” as the legal basis for the claim.
Notice of Civil Claim
The example above is extreme, but most people that file claims without a lawyer don’t do much better than this. Instead, they just include a ton of irrelevant facts (many pages), and little to no legal basis.
What can happen is that abc.com will hire a law firm to respond to your Notice of Civil Claim within 21 days. They might not even bother responding, and they might just hit you with a Notice of Application instead.
The Notice of Application would say that your facts are inadequate, and regardless, there is no legal basis for your litigation. The judge should throw the claim out.
Websites are allowed to use photos that appear online, as long as they are not copy writeable or trademarked. There are no laws against it.
The judge would likely agree, and you would lose your case. You would likely have to pay half their legal fees and 70% of their disbursements.
What Was The Correct Way To Start The Litigation?
The right way would be to think about what kinds of damages you incurred. How has the other person caused you harm, and what is the value of that harm?
If you don’t know the value of the harm, it’s probably not worth it. If you lend someone $100,000, and they don’t pay you back, the harm is $100,000. You want your money back.
If someone punches you in the face, and you have to spend $10,000 on medical bills, your claim will be for a minimum of $10K. There can be extra things added on, but you need to at least know what your damages are.
Filing a claim that can go on for years when you have no idea of how much money you should get is a mistake. If it’s very complex, maybe a law firm can do research for you and tell you the litigation claimed amount.
Even more important, an attorney would tell you what you need to prove to get that money from the courts. If you like movies, I highly recommend watching “A Civil Action” with John Travolta.
It’s one of the most accurate legal movies I’ve ever seen. But keep in mind, that’s a very complex and large lawsuit. The point is that trials are expensive, complex, and take time.
Getting Evidence Together From The Beginning
You are going to need resources to start litigation. You need to be willing to hand over $10K or more to a law firm. If you do it yourself, and the other side hires an attorney, you are in big trouble.
You should have hired a law firm to help you organize your facts, which should have tied into the evidence that you have. If you say that the other person did something bad, but you have no proof, you should not have added it to the claim.
Instead, you should have gone through your email, texts, and phone records to see what evidence you have. Even though you don’t include evidence in your pleading, you will need to disclosure your evidence during discovery.
If you can supply evidence to back up your facts, it might make the other side nervous. If they get nervous, then they might settle with you.
When you often can’t find evidence, then the other side will want to push forward with trial so they can beat you.
The most important thing with litigation is being organized. Putting in the work before you start the claim is going to pay off later. It will pay off even more if your case actually goes to trial.
Running around trying to find documents
The last thing you want to do when you are a few weeks out from the trial is running around trying to find documents. Everything needs to have been long organized.
But think of it this way, how can you start a lawsuit if you don’t know what evidence you have? Do you really think you can remember all the facts?
Let’s say that you remember lending someone money in August, so that’s what you write in the lawsuit papers. Months later you check, and it was actually July. It doesn’t seem like a big deal right?
The point is that the judge will read your claim, and know that you didn’t put a lot of effort into it. Being wrong about small things could mean you were also wrong about big things.
You need to win the judge’s trust. It’s your job, on a balance of probabilities, to be more right than the other side. Sometimes it’s called the burden of proof.
To do this, you make the judge believe that you are organized, calm, and put together. If you are 51% right, and the other side is 49%, you win the litigation.
Being Organized And Put Together During An Action
The previous point was very important. In order to win the judge’s respect and trust, you shouldn’t be the party that’s acting crazy. If the other side is acting aggressive and psychotic, take the other approach.
Say you are trying to avoid litigation, and you would like to talk about settlement. Say that you are looking for evidence, and you want to involve the courts as little as possible.
Make sure all of this is in writing, either in letters or emails. You want to be able to show your emails to the judge in the future. You are writing for the courts, not for the opposing party.
I’ve been against opposing parties or counsel that are very toxic people. From the very beginning, all they want to do is cause delay and hardship. They believe that by making everything so much harder and slower, that I will give up.
Keeping a record of everything during litigation
This works with many people in life, but not me. The other side might be able to delay the trial for six months, but that doesn’t mean I’m walking away. Because I am organized, I am keeping a record of everything.
After they have delayed a hearing five times, I am going to court without the other side’s approval. If they later raise an objection to the court order I sent them, I can send proof to the court that they delayed the hearing five times.
Emergencies happen, but not five times in a row. Eventually, a pattern emerges. By constantly delaying the trial, it could also mean that they know they could lose the case. Think about it.
If you get sued for professional malpractice, and you know you did nothing wrong, don’t you want to go to trial as soon as possible? Why would you want litigation hanging over your head for another six months?
You want to get into the courthouse, tell your story to the judge with all the evidence your attorney helped you put together, and get the case dismissed.
Once you have filed your claim, and the other side has responded, it’s time for the next stage in the litigation. This stage is called discovery. This is normally the longest part of the lawsuit.
This is called discovery. You get to discover the other side’s evidence, and they get to discover yours. There are many steps to this. In some parts of this section, we go into detail because we have not written about it before.
In other parts, we provide links to other articles where you can read about it.
Basically, if you don’t provide documents and evidence during discovery, you can’t later use them at the trial.
If you don’t push to get the other side’s documents or evidence, you can’t use it during the trial. Let’s use an example.
Let’s say you are alleging that a CFO at a company stole $400,000 from the bank account. It’s not a simple case, as money is constantly flowing in and out of the accounts.
You are going to need to prove that the CFO stole the money. You might have documents showing that over a two-year period, $400K in unaccounted money left the business accounts.
Getting A Court Order During Litigation
The CFO will put forward their defence. Perhaps they will admit that the money should have been accounted for and that it was their mistake, but the money did not go into their bank accounts.
You will likely want to get privileged information that the other won’t disclose to you. This can include bank statements, screenshots of the bank account, and credit card statements.
You might also try to find out if they purchased any new property or cars during that two-year period. You are not automatically entitled to this information.
Your lawyer is going to need to file a notice of application with the courts. It will ask for a court order that the other side provides these documents.
The other side (the CFO) will likely fight against the court order. They might say that it’s an invasion of their privacy. If they purchased condoms or medication with their credit card, why should they provide you with this information?
Of course, it will be up to the judge to decide who is right. The attorney who puts forward the best case will get the court order (or no court order.)
Doing Deposition During The Lawsuit
In the United States, they call it deposition. In Canada, it’s called examination for discovery. The point of this is to ask questions under oath and get answers to your questions.
There are many ways to do it. The questions you ask should be relevant to the pleadings. If you filed a claim, and they filed a response, ask questions about the important parts of each document.
Using the CFO example again, your lawyer might ask the CFO the following questions.
“At any point in time, did you ever take money from the account for personal use?”
“If you had taken money for personal use, would you agree that would be improper?”
“Why was $400K unaccounted for when it was your job as CFO to oversee the money?”
There might be a list of 100 questions that you want to ask during the seven-hour examination. However, it will depend on how long the answers take. You don’t want to rush it.
Another way to do the deposition is to put documents in front of the other person, and ask questions. You can also have the other person confirm it’s their signature, or that they received a copy of the document. It’s also possible to confirm the document is authentic.
This all saves a lot of time at trial. Also, if they save something completely different at trial, it makes them look bad. If they said it was authentic during the deposition, but they later say it’s fake, it makes them look unreliable.
Strategies For Getting Evidence During Litigation
You should talk with your law firm about the best way to use the deposition to get the evidence that you need to win at trial. You might just focus on a few key points that you need to prove.
Your lawyer might ask the questions in different ways.
The goal here is to see if the other person answers the questions in different ways. It’s rare that you get a confession like what happens in the movies.
If you need to speak to a law firm, contact us. We can connect you with one that we have vetted.
Author: Alistair Vigier is the CEO of ClearWay Law