10 things to bear in mind before going to court
Here are 10 things you may want to bear in mind before you decide to take your case to court:
1. Possible costs exposure
For the most part, the rule in litigation is that the losing party pays the winner's costs. Even if you think you've got a watertight case, there is always some risk that you may not prevail and therefore could end up with bills for your own costs as well as the other party's.
It is possible to get "after the event" insurance to cover part of this risk, but that insurance will only cover you for the other party's costs. You will still have to pay your own legal fees, court costs, experts' fees -- and the premiums for after the event insurance.
Moreover, even if you do win, you will probably not recover 100 per cent of your costs. The court will likely award only a proportion of them and will take into account the way you have conducted your part of the litigation in making its award. If you have been unreasonable in your approach to settlement negotiations with the other party, then the court may well penalise you with a reduced costs award.
2. Time commitment
Litigation takes a long time. Court schedules are crowded, the other side is entitled to certain periods of time to prepare its case, and there is a lot to be done if the case is going to go to trial. It is not unusual for cases to drag on for months or even years. And it's not just the lawyers who end up putting in the hours. If your case is going to go to trial, it's going to take a lot of your time as well -- with the attendant opportunity cost if you could have spent that time on other, more productive endeavours.
You should consider who your witnesses will be. Your solicitor will need to prepare witness statements for them, and ideally should do so while their recollection of the matters in issue is still fresh. It might also be important for you to keep in touch with your witnesses, since there could be a long period between the date that they give their witness statements and the date of trial.
You will want to think about what experts you will need. It is probably best to do this with your solicitor's advice, since your solicitor will know what types of expert witnesses you will need for particular types of cases. You should also bear in mind that the court will probably limit the number of experts that each party is allowed to produce at trial -- and in some cases will require that the parties jointly appoint a single expert.
5. Uncertainty of outcome
Even if you have complete confidence in your case, there is no such thing as a "sure thing" when it comes to litigation. The fact is, when you go to trial there is always some possibility that you will lose.
Or if you win, the damages or other remedy you're awarded may fall short of what you had expected.
In fact, it is possible that you could end up prevailing at trial, but getting less than what the other party had offered you by way of settlement before trial. If that happens, you could get penalised as to your costs award (see above), on the basis that your refusal to settle caused the other party to waste costs taking the matter to trial.
6. The law could change
In many areas, the law is constantly evolving, and in some areas it is changing quickly. With some types of claim, it may be that by the time your case gets to trial you will encounter a less claimant-friendly regime than you had anticipated months earlier when you first instructed your solicitor. To give one example, there has been much discussion about whether defamation law in England is overly slanted in favour of the claimant. An adjustment to the law while your defamation case is in mid-stream could leave you facing trial in a much less advantageous position than you had initially expected.
7. Choice of solicitor
Non-lawyers who (fortunately, perhaps) are not experienced in litigation will sometimes assume that legal advice is largely a commoditised offering, with all solicitors having more or less equivalent training, skills and expertise. In reality, most solicitors specialise, and within their specialties some are better and more experienced than others. It's difficult, though, for the non-lawyer to make an assessment of this. There are guide books and other sources available, and they can be of some help. A solicitor-client matching service like Contact Law can also assist.
It is important, however, that you be comfortable with your choice. If your case is a substantial one, it might have a significant impact on your future well-being and finances. You will want someone you can trust, and perhaps the best way to verify a solicitor's bona fides is to get references and follow up on them. If you're proposing to instruct a solicitor on a substantial matter, many will agree to put you in touch with clients for whom they have handled similar matters.
8. Choice of advocate
Some solicitors have rights of audience in the courts, but the vast majority do not. So it is likely that you will need a barrister to assist with court papers and to speak in court. Your solicitor will almost certainly recommend appropriate counsel, but you should consider getting involved in the decision-making process. As with selecting a solicitor, the selection of the right barrister could be crucial to the outcome of your case.
9. Can the defendant pay if you win?
There is little point in going to the trouble and expense of suing someone and getting a judgment, only to discover that he lacks the means to pay you. You should get as much information as possible about the defendant's financial status before you proceed. Even people of apparent means can end up being "judgment proof." People have been known to hide assets offshore, make gifts to spouses, and take other evasive action in the face of a possible judgment.
10. Preservation of evidence
Over time, people's recollection becomes unreliable. The ink on some fax transmissions will erase itself with age. The street where an accident took place may be reconfigured so that it no longer bears any resemblance to the road in which you were injured. Wounds heal. Things get lost. You and your solicitor need to think carefully about what evidence you will need for trial and how you will preserve it. Often, solicitors will take on the task of storing evidence, and they will almost always want to get witness statements at the earliest possible date.