litigation

And just what the heck is that? Well let’s take a look. We live in a combative society. No we do not settle most of our problems with fists (some people do) but we use the legal system. Every dispute which has to be resolved by a third Party falls under the category of litigation.

You might be trying to get justice for:

• an injury caused to you;
• a dispute with your neighbour; or
• maybe trying to keep yourself out of jail for allegations of a crime that you are alleged to have committed.

In some parts of the United States you would try to prevent yourself from getting executed. We do things differently in Canada. Litigation is divided into two categories. There is the criminal side and then everything else falls into a category called Civil Litigation. Simple. If it is not criminal it has to be civil, although sometimes when tempers flare it’s not too civil. We will deal only with civil in this article as criminal law is an entity unto itself.

CIVIL LITIGATION

Now civil litigation can be divided into two categories. You have matters that end up in front of the courts and other matters that end up in front of what is called an administrative tribunal.

An example of these would be a workman’s compensation board, Canada Pension Plan Appeals board, and anything else that could be called a board or tribunal. These were set up to relieve the pressure off the courts. Most of these tribunals have to act in a quasi judicial manner.

Do you like that word quasi judicial? I just tell people that the board has to behave similar to a court and give the parties before it a fair hearing, with the right to present evidence, ask questions and make arguments. Then, if you are unhappy with the decision of the board, there is usually something in the legislation (that’s the law that says a board or tribunal has to hear your case and not a court) that will allow you to appeal the board’s decision to a Court.

So you may end up in court anyway but you have to go to the board or tribunal first. Having said that, I will be writing something about boards and tribunals at a later date. Today we will focus on civil litigation in the Court system.

Hopefully you will not find yourself in a court room setting. As I said in my e-book on separation and divorce, the court room is not a fun place, it is not a gentle place and sitting in the witness box being cross-examined by a lawyer who is against you can be downright uncomfortable. It is also very costly.

You can’t imagine the paper work that is involved in civil litigation. Most lawyers who practice criminal law can operate their business with a criminal code and a few text books. Not all criminal cases are that simple but many cases do not have a lot of paper work.

Civil litigation is loaded with paper work and the more complex the case is, usually the more paper work is involved. Civil litigation is now getting so costly that there is a movement afoot to try and fast track cases that are under a certain monetary value and to get rid of a lot of pre-trial procedures. I will get into this later.

So what are a few of the examples of civil litigation? Well personal injury for one, being fired from your job unjustly (wrongful dismissal) family disputes, interpretation of wills and deeds, disputes over property lines, assault, (could be both criminal and civil). Like I said, it is any situation where you have to go to court to get a judge to make a decision.

Now the big question is: How do you pay a lawyer to take your case? Well, it all depends upon what sort of a case you have. If you have been in an automobile accident and it appears you are not in the wrong and you have injuries that you should be compensated for, the lawyer that you hire will most likely take your case on a contingency fee basis.

That means that if you win he will charge you 20 or 25 percent of the amount paid to you. In New Brunswick the law society has set a limit on the amount that can be charged at 25%, but there is a provision for the lawyer to ask the law society to approve a higher amount. It usually doesn’t happen.

Normally your lawyer will have you sign a contingency fee contract. In other cases, after meeting with you, the lawyer will have an idea if there is a good possibility of success and that will determine if he will work for you on a contingency fee arrangement. Some lawyers do not touch contingency fee arrangements at all.

Now if you happen to be a defendant in a lawsuit, there is not much of a contingency fee arrangement that can be arranged. You are the one being sued and if you lose you will have to pay money. You will have to pay your lawyer.

Now the work begins. After the first or second meeting when it is decided that your matter has to go to court, the lawyer will file an action with the court. It’s called by different names in some of the provinces but we all know what an action is. It has to be served upon the party that you are suing.

Of course the party that you are suing will be given a certain length of time to hire a lawyer to file a defense. Once the statement of defense is filed, then there has to be an exchange of documents, usually in affidavit form. In other words you have to sign an affidavit indicating all the documents that you have in your possession that pertain to the case as well as documents that you may have had but do not have now and documents that you feel pertain to your case but are in the possession of a third party. The other side has to do the same thing.

Now you may have a case where there is a great deal of documents involved, like a personal injury case or a construction case. Sometimes it takes a lot of time to get all the documents necessary, especially in a personal injury case where you are always waiting for medical reports from a doctor or some other specialist. Litigation is usually a long and arduous process and you have to be patient. The more lawyers involved, the longer it takes as scheduling sometimes becomes a problem.

Once all the documents have been reviewed by you and your lawyer, the next step is a discovery. Remember what I told you about an effort to speed up litigation? In New Brunswick all cases under $50,000.00 have no discovery. So your case is more than $50,000.00. You go to a discovery. Both the plaintiff and the defendant are there with their respective lawyers as well as a court stenographer. Your lawyer will ask questions of the defendant and the other lawyer will ask you questions. The reason for the discovery is to find out what kind of case you have against the defendant and to see if the defendant has a defense to your claim.

In civil litigation there can be no surprises. Everything has to be open so that each side knows the strengths and weaknesses of the other side’s position. Many times after the discovery cases get settled. However sometimes they don’t.

The next step is going to court and hearing it from the judge. Your lawyer will do all the necessary preparation (organizing the exhibits, drafting direct examination questions and questions to be asked on cross-examination of the other party’s witnesses, research, brief on law etc, more and more paper) including preparing you for the trial and the questions you will be subjected to by the opposing lawyer. (After the discovery there might be a number of other matters that have to be taken care of. You might have some undertakings to complete, i.e. get more information or produce some documents that you didn’t already produce in your affidavit of documents. Your lawyer will explain this stuff to you. For now, this is just an overview as to how you get to court) so more or less that is what civil litigation is all about.

Now here are some of the things that you have to know before you decide to sue. If you lose your case, the court has the discretion to award costs against you. How much, depends on the judge. There is usually a schedule somewhere in each province’s rules of court but the judge is not tied to the schedule.

Litigation is usually ponderous and takes a long time. If you have a personal injury 5 to 7 years may not be unreasonable dependant upon the injuries you have. Medical reports are very important to show the extent of your injuries and it may be a while before the medical people can come up with a final diagnosis. Your lawyer will not want to settle or go to court without this information. If your case involves other than personal injury it still might be one that has a lot of documents involved. There will be times you don’t hear from your lawyer. This doesn’t mean that he has forgotten about your case.

If he is a trial lawyer he will spend a lot of time in court. When in court he will not have time to work on your file as the case at hand is the most important. You will appreciate this when he is spending 100 per cent of his time preparing you for court. There could also be another reason that you might not hear from your lawyer as often as you would like.

There are only two types of clients, those that have money and those that do not. If you are one of those that do not have the money to pay your lawyer, be prepared to wait a little longer to get your case finalized. You have to understand that a law firm is a business and the staff and other creditors have to be paid. Unless your lawyer is very wealthy, he will have to give priority to those clients who have the cash to pay for his services immediately. Lawyers are the only profession that I know of where you work for someone with the hope that you will win their case so that you can get paid.

If somebody hired you and said that you would get paid at the end of the year provided that the company made a profit, would you work for that company? You can’t take that promise of getting paid at the end of the year to the bank and buy a house or a car or get a loan or buy groceries.

In order for the lawyer to continue to work on your case he has to have cash flow into his office and that is why he has to sometimes give priority to the client who has the cash to pay now. Another thing that clients do not realize, when your lawyer takes on your case on a contingency fee, not only does he have to put in his time in the hope of getting paid, but he also has to spend his own money to keep your case going. For example it costs money to file a lawsuit with the court, money to serve the action, money for the discovery etc.

I have seen some cases, especially personal injury cases where the lawyer has had to spend thirty to forty thousand dollars just to have continuous medical reports. Doctors do not work on a contingency fee. You want a medical report you pay and you pay up front. No money no report. Those reports can run from $800.00 to $3000.00 each and you may need updates.

Sometimes you need an actuarial report. They can run from $5000.00 to $10,000.00. If the day ever comes that you cannot get your case settled and you have to go to trial, somebody has to pay for the witnesses. If you need experts somebody has to pay for them. Guess what? You are not the one paying. YOUR LAWYER PAYS. If you win your case he will get reimbursed. If you lose then you shake hands and your lawyer is left holding the bag for all the expenses he incurred on your behalf. There are always two sides to every lawsuit. The judge will only pick one side. So there is always a winner in a lawsuit, and you always hope you’re the winner. So when you don’t hear from your lawyer for a while remember he hasn’t forgotten about you, he needs to keep his business going so he can continue to work for you and get justice for you.

This is just a brief summary about what civil litigation is about. It can get very frustrating for both sides. That is one of the reasons that after the preliminary matters are started, before going to a full court room battle, parties try to get a mediator to see if the case can be settled. Since we usually always compensate the injured party with money, the mediator’s job is to bring the parties to a dollar figure that they can live with. I have always said that a settlement where both parties are unhappy is the best one you can get. You didn’t get what you wanted, but the other guy paid more that he thought he should have.

SISCOE LAW CP INC. - LITIGATION ATTORNEYS

Our law firm has been doing civil litigation for 24 years. If you live in the Province of New Brunswick and feel that you have been wronged for whatever reason, we would be happy to give you a free consultation to review the merits of your case.

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DISCLAIMER:
Unless otherwise noted, all articles on this site have been written by Martin J. Siscoe, Barrister and Solicitor and Notary Public for the Province of New Brunswick. Nothing is intended to be used as legal advice as each person's situation is unique. This information should not be relied upon in respect to any specific situation your or an acquaintance may be facing. The law is always changing and what is good law today may become outdated tomorrow. Articles can go out of date quickly in spite of an effort to regularly update. Information contained on this web site is for educational purposes only. If you have a legal problem, this information may help you to understand certain aspects of the law, but get your own legal advice from a lawyer.