If you or your business are sued, there are many myths about how the legal process will pan out. Here are 10 myths about the legal process – all are incorrect.
Myth #1: The matter will definitely go to a hearing
Most matters settle before a Judge decides them. The reasons for this are many including the time and expense involved in litigation. Also litigation is inherently risky. How the matter will pan out in court is unpredictable. A wise Senior Counsel once said that the best case in the world is only 80% winnable.
Myth #2: If there is no settlement at mediation the matter will not settle
Matters may settle at mediation, but may not. Some matters will be mediated twice. Other matters will settle after the mediation. Or even in the lead up to the hearing or during the hearing.
Myth #3: When the matter is first listed this is when it will be decided
The court usually lists a matter two or three weeks after it is filed for a “directions hearing”. This is when a Registrar (or sometimes a Judge) will look at the matter on a preliminary basis. Usually the parties will agree to a timetable for pleadings and evidence. Many matters are dealt with via the online court and do not require a physical appearance.
Myth #4: The matter will resolve quickly
Litigation generally takes time. The courts have lots of matters and generally the process is not fast.
Myth #5: All evidence is given orally
Often evidence is produced in documentary form. Affidavits are like statements and can often be relied upon in court.
Myth #6: There is no way to get documents from the other side
If a party does not voluntarily produce documents, a process of what is called discovery may be embarked upon. Sometimes a subpoena can also be issued or a notice to produce documents.
Myth #7: You do not need to work out your case early on
A defence often needs to be filed very early on in the matter. This is normally one of the first documents that a Judge will look at in the matter.
Myth #8: Judges will handle the matter throughout the process
Registrars usually handle preliminary matters not Judges.
Myth #9: You will not eyeball the other side
You may see the other side at a mediation or at court. If you have a lawyer acting for you or your business, this can minimise the direct contact.
Myth #10: Once the Judge decides the matter it is all over
There are two main reasons why this is wrong. The first is that the losing party may appeal to a higher court. The second is that even if you win, you need to recover the judgment sum (assuming it is, for instance, an award of damages) plus costs and interest from the other side. There are various options for enforcing a judgment. But the process is not guaranteed to be smooth.
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