Do you want to litigate? A litigator’s perspective

Much to consider

Litigation can be a time consuming and costly process. Also to consider is the emotional burden of being involved in what is often a protracted and invasive process. The pains of litigation can also be inherently uncertain and judgments (even once awarded in your favour) can prove to be difficult to enforce. Prior to making a decision to commence legal proceedings you should consider the following:

The commercial value of the claim;
Resources required to dedicate to the litigation;
Reputational issues associated with being involved in litigation;
Strategic issues related to protection of your commercial position (eg. enforcement of intellectual property rights);
Ability of enforcing a judgement or of the other side paying any judgement awarded in your favour; and
Possibility of a negotiated settlement resulting in adequate compensation.

Uncertain outcomes

It is important to note that litigation is inherently uncertain, irrespective of the merits of your claim. The outcome of any matter that it litigated depends greatly upon:

the attitude adopted by your opponent;
procedural issues and procedural directions made by the Court;
quality of your evidence (see below);
attitude of the presiding Judge to witnesses;
the manner in which evidence is presented in Court; and
interpretation of the evidence and legal issues by the presiding Judge.

Negotiated settlement

Sometimes, the best litigation is no litigation and settlement of claims can be the most practical and commercially viable approach to take. Courts encourage parties to view litigation as a method of last resort. Indeed, settlement can be reached at any time, even after the litigation process has commenced.

Without prejudice

‘Without prejudice’ settlement discussions allow you to make appropriate concessions for the purposes of attempting to resolve the dispute, without necessarily compromising your position if you ultimately are unable to resolve the issues prior to trial.

Settlement offers and counter-offers should be considered in light of the following practical issues:

costs of litigation;
potential to enforce judgments;
adverse costs orders throughout the litigation process and at trial; and
time consumed from commencement to trial.

What to do when a dispute arises

Disputes come in many shapes and sizes, and with varying degrees of complexity. There are common threads, however:

Seek legal advice as to the merits of your claim and the other side’s position. This early stage of investigation can often result in parties negotiating a resolution to the impasse;
Do not delay in responding to deadlines from opposing lawyers or the Court. This can adversely affect your position during the pre-trial stages;
Avoid having any discussions with the other side, unless they are “without prejudice” and advice has been given to you by your lawyer;
Do not admit anything; and
Do not publicise the dispute, without first obtaining legal advice.

Evidence

The quality and integrity of evidence is critically important in the outcome of the majority of disputes. Below are some handy tips:

Take care when creating new documents that relate to the dispute (see below);
All electronic data should be backed up and printed in hard copy form; and
Do not destroy, shred or amend any documents or media containing information relevant to the dispute.

You may have to show compromising documents to the other side during the proceedings. This obligation to ‘discover’ all documents relevant to the proceedings works both ways and each party to the dispute may need to reveal these documents even it is damaging to their case. Therefore, in the lead up to any potential action, you should:

Consider whether a subsequent written document (including emails) needs to be created;
Consider what is being written down and how it might appear to a judge at trial;
Avoid making assumptions or speculating on the merits of the dispute; and
Avoid opinions and ‘stick to the facts’.