Catherine Ramnarine
Last week, in this space, an outline was given of the preparatory steps clients are required to take if their conduct of their business results in litigation, either from a claimant or defendant’s point of view.
The steps to trial and beyond are dealt with this week.
Evidence and proof:
The unfortunate reality of litigation is that it’s not always enough to be right – you have to be able to prove to the judge that you are by presenting convincing evidence that supports your story or disproves the other side’s story. If for whatever reason you cannot produce this evidence (you didn’t keep proper records, the people that were familiar with the facts have since left the business etc.), it increases the chances of the judge ruling in favour of the other side.
Disclosure:
You are required to identify for the court and the other side all the documents in your control that may be relevant to the case. This includes not only documents that support your case, but also documents that would harm it or support the other side’s case. Certain documents (such as communications between you and your attorney) might be ‘privileged’ and need not be disclosed. In practice, disclosure usually means that each side files what is called a ‘list of documents’.
Witness statements:
Under the CPR, parties file ‘witness statements,’ basically written summaries in the witness’ own words of the evidence they are going to give, before the trial. A witness will not be allowed to give evidence at trial unless he has filed a witness statement by the time prescribed by the judge for doing so. A witness is not generally allowed to give additional evidence not contained in his witness statement unless he is responding to questions asked by the other side’s attorney. So it’s important to make sure that the witness statement(s) contain all the facts necessary to prove your case.
Trial:
Once all the pre-trial steps have been complied with, the judge will fix a date for the trial of the matter. At trial, the claimant will present his case (including the evidence of his witnesses) first, followed by the defendant. After each side presents their case, the attorneys may make ‘submissions’ on how thejudge should decide the matter; this can be done in writing or orally. Once the evidence and submissions have been given the case is closed and the judge will give his ruling, either giving the claimant what he asked for or ‘dismissing’ the claim. In practice, manyjudges reserve their judgment for a later date so that they will have some time to consider the evidence and arguments put before them.
A party can appeal a judge’s decision to the court of appeal. However, only the judge’s interpretation of the law can be challenged. If there is, for example, a dispute between the parties about whether a particular occurrence took place and the Judge rules that it did, the other side cannot appeal this decision.
How to help your attorney help you
It can be easy, especially where you think that the claim against you is baseless or frivolous, to view litigation as a nuisance that you are paying your attorney to handle so that you don’t have to. Using your attorney effectively can free up your time and energy for more important things, but in order to truly maximise the benefits of legal representation you should think of it as a partnership between you and your attorney. There are several things that you can do in order to get the most value out of your attorney and improve the chances of a successful outcome to your dispute.
* Give your attorney all the facts
In order to properly advise you and successfully represent your interests, your attorney needs to know all the facts – even those that might be unfavourable or embarrassing to you or those you might consider irrelevant. Avoid the temptation to overstate or understate your case. If you aren’t sure whether something is important tell your attorney about it anyway. Let him have copies of all documents that may be relevant as soon as possible. Keep him informed of any developments that arise during the course of the case.
* Be responsive
Because of how the litigation and court scheduling systems work it’s not unusual for cases to be ‘dormant’ for a while and then suddenly resurface with a flurry of directions from the court that need to be complied with in a short space of time. You should try to respond to your attorney’s requests for information as soon as you are able to. If for some reason you don’t think that you can meet one of the deadlines set by the Court let your attorney know in advance – he might be able to get an extension. For larger businesses it’s often useful to designate a ‘point’ person for the case who will respond to requests for instructions and attend the hearings.
* Ask questions
Sometimes things that seem routine to attorneys are confusing to people who are unaccustomed to the litigation process. You should understand what the legal, factual and evidential issues in dispute are in the matter and what your attorney’s ‘strategy’ for dealing with the case is. A good attorney will take the time to explain this to you. If there is anything you don’t understand or don’t feel comfortable with, ask him to clarify or explain it. If you need to sign anything make sure you read it through carefully and understand it before you do.
* Have realistic expectations
The law might not always make sense or seem fair to you, but it’s still the law. Your attorney can only work within the boundaries of the legal system. A good attorney will tell you what you need to know – including the weaknesses and shortcomings in your case – and not just what you want to hear. If your attorney advises you that it might be in your best interests to settle or drop your case, give genuine consideration to his advice. If you do try to negotiate a settlement with the other side, remember that neither you nor your attorney can force the other side to agree with you or to be reasonable. Of course you should always remember that your attorney owes a responsibility to you as well to listen, be responsive and act in your best interests.
Adopting a few of these suggestions can greatly decrease the stress of the litigation experience, maximise the value that you get out of your legal representation and improve your chances of success.
Catherine Ramnarine is a partner at M Hamel-Smith & Co. She can be reached at mhs@trinidadlaw.com
Disclaimer: This column contains general information on legal topics and does not constitute legal advice