The conduct of court litigation to achieve effective outcomes for a client is an art born out of experience and a proper understanding of the limitations of the court process. Any seasoned litigator will be able to relate tales of “winning the unwinnable” case and losing what was believed to be the “unloseable case” because of the unpredictable manner in which such disputes can unfold. Some of the factors contributing to the inherent uncertainty in litigation can be:
- The ability of a client to perform well in the witness box and convey their evidence to the court in a clear and credible fashion.
- Previously unknown evidence coming to light late in the proceedings through document disclosure or presentation of evidence at trial.
- The sometimes peculiar and subjective attitudes which judges may take with respect to particular issues.
Recognition of these uncertainties and taking steps, so far as possible, to limit their occurrence are essential ingredients in well conducted litigation and balanced advice which needs to be provided to a client.
Achieving effective outcomes for a client in any dispute requires the formulation of a strategy appropriate to the issues which form the core of the dispute. At the outset, it is essential to understand both your own strengths and weaknesses and those of your opponent. A balance needs to be struck between the outcomes which a client can reasonably expect to achieve in a matter and the financial resources which are available to pursue that outcome. It is important not to be distracted with costly applications to the court which can waste or exhaust financial resources before the opportunity for conducting a trial or settling a claim has been achieved.
Understanding the personal disposition of one’s own client, and to the extent possible, gaining some appreciation of the opposing party’s attitudes and approach is an important part of any strategy. There is no doubt that some people are better equipped than others to cope with the stresses and strains of court litigation which usually unfolds over protracted time periods. If it becomes apparent that a party is going to have difficulty dealing with the litigation experience, or that a principal witness is likely to perform poorly in court, these issues need to be recognised early in the proceedings and it may be necessary to shift the focus of the strategy to achieving appropriate terms of settlement.
Another common quality in successful litigators is a thorough approach to preparation of the case. This thoroughness includes the taking of full and comprehensive statements from all relevant witnesses and an organised approach to document management in presentation of the case in a clear and consistent manner to the court.
An effective strategy also requires a focus on the achievable outcomes for the client. The robotic pursuit of court proceedings through the usual processes required by the court rules up to trial, without proper consideration of how useful any judgment will ultimately be to a client, can be a costly waste of time. The financial capacity of the other party to meet the claim needs to be explored and recognised as soon as possible. Achieving a paper judgment which cannot be enforced against the other party because of their lack of financial resources, is a pointless and costly exercise for the client.
Various forms of alternative dispute resolution are currently available, and their popularity relies upon the potential for a quicker outcome to be achieved in a dispute with less cost than that which would be associated with a full trial of the matter. However, it has become fashionable to routinely refer matters to mediation, without proper consideration as to whether the nature of the dispute, and the likelihood of settlement, lends itself to such a process. If a mediation is unsuccessful, it merely adds a further layer of costs and delay to the proceedings, as the parties will then need to take the dispute to trial after having expended considerable legal costs in preparing for, and participating in, the mediation. A number of factors need to be considered when assessing the likely usefulness of a mediation, including:
- The personal disposition of the parties and how open to compromise they are likely to be.
- Whether an opposing party appears to be engaging in the dispute to “buy time” and is therefore unlikely to be prepared for settlement.
- The degree to which factual issues are in dispute, or whether the matter is predominantly an argument about the proper interpretation of the law. If the parties have starkly different versions of events which would influence the outcome of the case, it can be difficult to reconcile those positions to achieve settlement.
Consideration needs to be given to such factors in advising clients on the value of the mediation process. Matters displaying any or all of the above features are still capable of resolution at mediation but it becomes much less likely.
A litigation solicitor assembles the available evidence and statements and otherwise prepares the matter for trial, but also relies upon engagement of appropriate expert witnesses to support the client’s position, and needs to retain suitably experienced barristers to present the case in court. Therefore, it is important for the successful litigator to recognise the best experts to be engaged and be familiar with those barristers who possess the skills and experience appropriate to the matter.
Achieving effective outcomes for clients in litigation requires the solicitor to give careful consideration to all of these issues. It is fair to say that balancing these considerations, and making appropriate recommendations to a client, is an art which is usually acquired through many years of experience.
By David Brown