Secrets of Success in Litigation I

Ask almost any successful lawyer, and they will tell you, you must be properly prepared whenever you litigate any matter.  Preparation is the key for ensuring the best chances of success.  Litigation is very uncertain, and the only way to manage that uncertainty is to be as prepared as possible.  A lawyer cannot be effective if there is little or no preparation.

It takes time to properly prepare for any hearing – a lot of time.  When I am preparing for a hearing, the preparation time is actually three or four times the amount of time actually spent before the judge or other hearing officer.  Preparation requires that you consider facts and law which will probably not be considered at the the hearing but may possibly have an impact on the case.  Preparation also requires that a lawyer know and understand how to handle the more difficult facts and/or law.

You should bear this in mind when retaining a lawyer.

The following are some of the things that help in preparation:

1. Gather all documents together that have an impact on your issues;

2. Disclose all information to your lawyer, whether you consider the information to be good or bad;

3. Know exactly what you want your lawyer to achieve.

Proper preparation does not guarantee a win.  However, a loss is very likely if there is a lack of proper preparation.

Default judgments

All courts and tribunals hate to be ignored.

I previously mentioned that there is difference between procedural and substantive rules. Ignoring court processes is a serious breach of procedural law. If you ignore court process, you are running a great risk.

Yet it happens every day. A defendant is served with court documents and then “forgets” about it. Usually, it is not forgotten – sometimes it is simply fear that causes a person to do nothing.

The thing is if you fail to respond to a court process, then you diminish your chances of giving your side of the story. It is in the rare case that you do not have some defence or response. You will lose your chance to give your side of the story.

So defend your case.  Put out the best argument that you can think of.  Use your rights to your advantage.  Do not lose your rights through fear or “forgetfulness”.

Procedural and Substantive Matters

Have you ever wondered why someone with a “100% solid case” (there is no such thing) lost?  Or why it is that case can be tied up in court for years?  Why a simple matter becomes complicated when it goes to court?  There are obviously many answers to those questions, but one of the answers is the difference between substantive and procedural law.

In the litigation field, there are two main types of law with which you have to be familiar.  The first is substantive law.  Substantive law is the law which you will be relying on in your arguments.  The second is procedural law.  Procedural law explains how to approach the court, bring an action and ultimately obtain the judgment.  Substantive law defines rights and obligations of persons.  Procedural law strives to ensure that each person who is brought to court or before a tribunal is treated fairly in accordance with fundamental justice.

Substantive law includes the law of negligence, contract law, estate law, wrongful dismissal and similar types of law.  Procedural law includes rules about service of documents.  If you are suing on a debt, the substantive law of contracts would explain why you are owed the money.  The procedural law of the Superior Court of Justice would explain how to start a claim, how to serve the claim,  how to apply for default judgment if the defendant does not defend, how to apply for summary judgment, how to conduct discovery and so on.

The thing to remember is this:  even if you feel that your opponent is completely wrong on substantive law, you still have to treat him/her fairly in accordance with the required procedures.