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What does a litigation lawyer do?

Contrary to popular belief, the life of most litigation lawyers does not revolve around dramatic courtroom confrontations. Instead, the litigating process is a careful dance during which each side seeks to uncover weaknesses in the other’s position and prepares themself for negotiations and trial.

The preferred goal of a litigation lawyer is always to resolve their client’s dispute by means of a settlement. In practice, resolving a dispute often requires a period of exploring the facts and testing the strength of each side’s legal case. If the other side is unwilling to settle on terms the client will accept, the only recourse may be to proceed to trial.

Being a good litigation lawyer requires effective communication, negotiation and organisation skills. Most important, however, is the ability to present a convincing legal argument in favour of the client’s position. At times, barristers are briefed for these presentations to the court (known as appearances), especially in complex cases and trials.

While a litigation lawyer’s duties will differ depending on whether he or she represents the plaintiff or defendant in a proceeding, the litigating process is similar for both.

Litigation and dispute resolution covers all areas of law but focusses on dispute resolution and court proceedings.Court rules and procedures in relation to documents, filing proceedings and complying with dates are complex and strict. Not all types of lawyers are familiar with the court rules and requirements. Thus, while property lawyer will be able to handle property matters, they may not be skilled in handling litigation.

Litigation lawyers are very skilled in handling court-based disputes and preparing and managing cases. They have a deep understanding of the requirements and procedures of the various courts. They also are experts at preparing legal documents, such as complaints and defences, and negotiating with the other parties. They need to protect their client’s position while carefully responding to the other party and courts throughout the process.

The management aspect of cases cannot be underestimated either. Litigation lawyers work with teams and external experts such as valuers, barristers and expert witnesses to get the best results for their clients. They are central to the negotiation, co-ordination and preparedness of any case.

A litigation lawyer’s role can be divided into seven stages:

  • Investigation– preliminary consideration of the issues
  • Pleadings
  • Discovery
  • Mediation
  • Trial
  • Appeal

When a client walks through the door, a litigation lawyer starts their work by listening carefully to the client to gain an understanding of their situation. By virtue of training and experience, a litigation lawyer may sometimes quickly know whether the client’s legal position is sound.

In urgent cases, such as an injunction, there might be immediate action required of a litigation lawyer.

In other complex situations, the litigation lawyer will need to conduct additional factual investigations and legal research to be able to properly advise the client as to the best course of action.

The length of the litigation process is determined by the urgency of the client’s matter and how soon a dispute resolves.

The Investigation Stage

The investigation stage almost always involves a careful review of the client’s documents, such as any relevant contracts, agreements or deeds. At this stage, it may be necessary to consult an expert in the relevant field. For instance, if the case is a construction dispute, a litigation lawyer may wish to speak with a civil engineer, who may later become an expert witness in the proceeding.

In addition to a factual investigation, a litigation lawyer will frequently need to perform legal research and analysis at the investigative stage. A realistic assessment of the client’s legal position is essential for a litigation lawyer to properly advise the client about what course of action will most likely achieve the client’s objectives.

In many respects, the early stages of litigation are the most important because they define and mould any ensuing litigation. The greater the amount of information a litigation lawyer collects at the outset of a case, the better they can formulate a strategy to protect the client’s interests most effectively.

Pleadings

Scientists have microscopes and doctors have stethoscopes, but a lawyer’s primary tools are a pen and paper—or to be more accurate, a keyboard and word-processing software.

One of a litigation lawyer’s early tasks in a new case is to prepare the initial ‘pleadings’ in the legal proceedings. ‘Pleadings’ refers to the written statement of claim that initiates a suit (if the client is the plaintiff) or the defendant’s written answer to a statement of claim made against them (if the client is the defendant).

Before this can be done, as noted earlier, a good litigation lawyer will conduct their own adequate investigation into the facts and will also conduct sufficient legal research to enable them to develop an overall strategy for the litigation. Litigation without a strategy is like a ship without a rudder and can often end in a wreck.

Early pleadings are crucial because they often define and limit the types of arguments the lawyer can present to the judge later in the proceeding. For instance, if a plaintiff’s statement of claim omits a particular legal claim, the plaintiff’s lawyer might not be able to raise that claim later in the proceedings. Similarly, if a defendant’s answer fails to raise a particular legal defence, the defence lawyer might be barred from ever raising that defence. As these initial court filings can limit the scope of the parties’ later contentions, careful legal research is vital before filing the pleadings.

There is a certain amount of art to drafting pleadings, especially because both sides may be in the dark about certain facts. For example, the defendant may possess information that the plaintiff does not have, or vice versa. Skill is required to draft a pleading that is specific enough to satisfy the court while also leaving flexibility to accommodate the twists and turns that the litigation may take.

Although a party may be allowed to amend a pleading after it is filed, this is still subject to the court’s consent. So, litigation lawyers put a great deal of thought and strategic consideration into the process of drafting pleadings.

Discovery

A litigation lawyer has an ongoing obligation to the court to discover all relevant materials. During the discovery stage of litigation, each party turns over relevant documents to each other and answers specific questions posed by other parties. The basic purpose of this mandated sharing of information is to enable each side to develop a fuller understanding of the underlying facts.

Drafting discovery requests requires a significant amount of skill, especially because a litigation lawyer knows that the opposing party will be reluctant to disclose information damaging to its case. Thus, the lawyer needs to pose specific discovery requests that do not provide wiggle room.

If a party refuses to turn over documents or answer certain questions, the judge can sanction the party. Even up to the point of declaring that the party has forfeited the proceeding.

Lawyerly skill is also used in responding to discovery requests. No lawyer wants to harm a client’s chances of winning their case however, a litigation lawyer also has a strict duty to the court. For this reason, litigation lawyers draft answers to requests for discovery that provide only the necessary information to satisfy the client’s legal duty to share information.

If a party’s answers to discovery requests are too vague or are otherwise deficient, the opposing party can ask the judge to order more complete responses. The judge has the power to impose severe sanctions for noncompliance.

Lawyers for the parties in a proceeding often argue vigorously about what documents need to be turned over and what questions need to be answered.

Certain types of information are shielded from disclosure, such as the content of conversations with a lawyer. A ‘lawyer-client privilege’ shields any information reflecting what the client said to his or her lawyer and vice versa from discovery. Clients can inadvertently ‘waive’ the privilege if they are not careful. Lawyers are intent on ensuring that no waiver occurs.

Mediation

An essential part of litigation is mediation. Mediation is the process where all parties and their representatives meet in the presence of an independent court-appointed person, known as a mediator, and attempt to negotiate a settlement before trial.

Mediation is compulsory before any case can go to trial, and often occurs at multiple stages of the litigation. Settling disputes reduces judges’ workload and saves taxpayers money.

Litigation lawyers are experienced negotiators and will provide advice and make recommendations about any settlement offer. In the end, though, it is the client who decides whether to settle on the terms that the other side is willing to offer and thus effectively controls the duration of the litigation.

Each side’s ultimate leverage in the mediation is the threat to continue to litigate and take the case to trial if necessary.

If the matter resolves at mediation a litigation lawyer will typically draft a settlement deed. This is generally done at mediation, on the day. Your lawyer will need to be skilled not only in negotiating an agreement but in drafting a comprehensive settlement deed. If the deed is poorly drafted and missing key concepts it can leave a client without proper recourse or leave the door open for the dispute to reignite.

It could be that the deed doesn’t fully consider all the key terms or that the agreement is too difficult to abide by.

The technical skills of your lawyer to draft a settlement deed is important and should be carefully considered as this is often done at mediation.

Trial

If litigation were an iceberg, the trial would be its tip. Put differently, almost all of the work a litigation lawyer does occurs before trial.

At trial, a barrister will take the reins of the case from the litigation lawyer. However, the litigation lawyer will assist the barrister in preparing for and conducting the trial. As the person with the most in-depth knowledge of the case, the litigation lawyer necessarily plays an essential role at trial.

Most commercial disputes go to trial with a judge presiding over the matter and no jury. The documents of the trial are already prepared. All the parties have a copy of the court book that contains all documents, reports and affidavits that will be used in the trial.

Generally, at trial, a barrister will run the case in court with the litigation lawyer assisting. The barrister has detailed knowledge of legislation, similar cases (precedents) and the client’s matter. They present the case to support their client’s position by highlighting the relevant evidence, legal precedents and legislation to the court. During a trial, the parties, witnesses and experts will also testify and are asked to answer questions and explain evidence relevant to the case.

The judge also asks questions and forms an opinion and ultimately makes a ruling in favour of one of the parties. The judgement is usually handed down a few weeks after the case finishes being heard at court.

During this time, a litigation lawyer will be overseeing the case and the parties may engage in settlement negotiations during the trial. The judge may give an early indication of which way they are leaning and a party can become more negotiable if it is not in their favour. In some circumstances a judge may even order that parties to go back to mediation before continuing with the trial.

The judge’s ruling is typically final unless there is a point of law that can be appealed.

Appeal

The outcome of the trial does not necessarily end the proceedings because the losing party can still appeal.

The losing party may argue, for instance, that the judge erred in dismissing the proceeding or had no legal grounds for barring the party from asserting a particular claim or defence.

An appeal will require a legal brief. This is another point at which the litigation lawyer’s skill in crafting a compelling legal argument can turn the case around.

Here again, the expertise of an adept litigation lawyer can make a significant difference in the outcome for the client—as indeed it does at every stage of the litigation.

If you have a dispute, you need an experienced litigation lawyer to represent and advise you. They are skilful and can give you the best assessment on your matter.

At the completion of the matter the parties must abide by the court orders. If they don’t, they stand to risk financial loss and are in contempt of court. In some instances, it may be that further action is required such as winding up a company or seizing goods, etc, to enforce the court order.

A litigation lawyer who is experienced will have a wide breadth of knowledge and strong technical and soft skills that helps clients to resolve disputes. As disputes and legal proceedings are complex and very technical, it is important that you seek out a litigation lawyer that has this skillset and proven experience.

Additionally, they should have the support of a qualified team and network of experts and barristers that can prepare and present your case in the best possible light.

Some litigation lawyers have expertise in a range of different areas such as:

  • Building & Construction Disputes– Building and construction disputes have unique processes, tribunals and legislation and are best handled by building and construction lawyers. They usually have the right experts and have a knowledge of building and the issues that normally are disputed.
  • Business& Commercial Disputes – Commercial litigation typically involves contract disputes, debt collection, false & misleading conduct, partnership, director disputes etc. It requires knowledge of different types of legislation and commercial understanding to get the best outcomes.
  • Franchise Disputes – Franchising has its own unique legislation and prescriptive dispute resolution processes. Therefore, it is best to engage a law firm that has the complete and thorough understanding of Franchising and the Franchising Code of Conduct.
  • Intellectual Property Disputes– Intellectual property disputes are often about trade mark infringements or trade secrets. Many intellectual property disputes can be resolved quickly, but expert advice should be sought before you enter any settlement deeds.
  • Property Disputes Property disputes are diverse and can be with different parties such as individuals, tenants, landlords, banks or governments. It covers leasing, adverse possession, property partnerships, mortgages, caveats etc.
  • Shareholder Disputes–Shareholder disputes can cover many different types of legislation, but primarily is covered under the Corporation Act.
  • Tax Disputes – Disputes with ATO or Government Agencies ie State Revenue Office.
  • Family Law – Family law has it’s own courts and procedures and most family lawyers are skilled in the different processes and expected outcomes of family law cases. Mostly family law matters settle before trial and can be amicable as the parties are related and often have children.

Please note: The above is not intended to be legal advice. Every circumstance is different. Always seek legal advice in relation to your individual situation.

© PCL Lawyers 2021

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