Cather­ine Ram­nar­ine

Last week, in this space, an out­line was giv­en of the prepara­to­ry steps clients are re­quired to take if their con­duct of their busi­ness re­sults in lit­i­ga­tion, ei­ther from a claimant or de­fen­dant’s point of view.

The steps to tri­al and be­yond are dealt with this week.

Ev­i­dence and proof:

The un­for­tu­nate re­al­i­ty of lit­i­ga­tion is that it’s not al­ways enough to be right – you have to be able to prove to the judge that you are by pre­sent­ing con­vinc­ing ev­i­dence that sup­ports your sto­ry or dis­proves the oth­er side’s sto­ry. If for what­ev­er rea­son you can­not pro­duce this ev­i­dence (you didn’t keep prop­er records, the peo­ple that were fa­mil­iar with the facts have since left the busi­ness etc.), it in­creas­es the chances of the judge rul­ing in favour of the oth­er side.

Dis­clo­sure:

You are re­quired to iden­ti­fy for the court and the oth­er side all the doc­u­ments in your con­trol that may be rel­e­vant to the case. This in­cludes not on­ly doc­u­ments that sup­port your case, but al­so doc­u­ments that would harm it or sup­port the oth­er side’s case. Cer­tain doc­u­ments (such as com­mu­ni­ca­tions be­tween you and your at­tor­ney) might be ‘priv­i­leged’ and need not be dis­closed. In prac­tice, dis­clo­sure usu­al­ly means that each side files what is called a ‘list of doc­u­ments’.

Wit­ness state­ments:

Un­der the CPR, par­ties file ‘wit­ness state­ments,’ ba­si­cal­ly writ­ten sum­maries in the wit­ness’ own words of the ev­i­dence they are go­ing to give, be­fore the tri­al. A wit­ness will not be al­lowed to give ev­i­dence at tri­al un­less he has filed a wit­ness state­ment by the time pre­scribed by the judge for do­ing so. A wit­ness is not gen­er­al­ly al­lowed to give ad­di­tion­al ev­i­dence not con­tained in his wit­ness state­ment un­less he is re­spond­ing to ques­tions asked by the oth­er side’s at­tor­ney. So it’s im­por­tant to make sure that the wit­ness state­ment(s) con­tain all the facts nec­es­sary to prove your case.

Tri­al:

Once all the pre-tri­al steps have been com­plied with, the judge will fix a date for the tri­al of the mat­ter. At tri­al, the claimant will present his case (in­clud­ing the ev­i­dence of his wit­ness­es) first, fol­lowed by the de­fen­dant. Af­ter each side presents their case, the at­tor­neys may make ‘sub­mis­sions’ on how the­judge should de­cide the mat­ter; this can be done in writ­ing or oral­ly. Once the ev­i­dence and sub­mis­sions have been giv­en the case is closed and the judge will give his rul­ing, ei­ther giv­ing the claimant what he asked for or ‘dis­miss­ing’ the claim. In prac­tice, many­judges re­serve their judg­ment for a lat­er date so that they will have some time to con­sid­er the ev­i­dence and ar­gu­ments put be­fore them.

A par­ty can ap­peal a judge’s de­ci­sion to the court of ap­peal. How­ev­er, on­ly the judge’s in­ter­pre­ta­tion of the law can be chal­lenged. If there is, for ex­am­ple, a dis­pute be­tween the par­ties about whether a par­tic­u­lar oc­cur­rence took place and the Judge rules that it did, the oth­er side can­not ap­peal this de­ci­sion.

How to help your at­tor­ney help you

It can be easy, es­pe­cial­ly where you think that the claim against you is base­less or friv­o­lous, to view lit­i­ga­tion as a nui­sance that you are pay­ing your at­tor­ney to han­dle so that you don’t have to. Us­ing your at­tor­ney ef­fec­tive­ly can free up your time and en­er­gy for more im­por­tant things, but in or­der to tru­ly max­imise the ben­e­fits of le­gal rep­re­sen­ta­tion you should think of it as a part­ner­ship be­tween you and your at­tor­ney. There are sev­er­al things that you can do in or­der to get the most val­ue out of your at­tor­ney and im­prove the chances of a suc­cess­ful out­come to your dis­pute.

* Give your at­tor­ney all the facts

In or­der to prop­er­ly ad­vise you and suc­cess­ful­ly rep­re­sent your in­ter­ests, your at­tor­ney needs to know all the facts – even those that might be un­favourable or em­bar­rass­ing to you or those you might con­sid­er ir­rel­e­vant. Avoid the temp­ta­tion to over­state or un­der­state your case. If you aren’t sure whether some­thing is im­por­tant tell your at­tor­ney about it any­way. Let him have copies of all doc­u­ments that may be rel­e­vant as soon as pos­si­ble. Keep him in­formed of any de­vel­op­ments that arise dur­ing the course of the case.

* Be re­spon­sive

Be­cause of how the lit­i­ga­tion and court sched­ul­ing sys­tems work it’s not un­usu­al for cas­es to be ‘dor­mant’ for a while and then sud­den­ly resur­face with a flur­ry of di­rec­tions from the court that need to be com­plied with in a short space of time. You should try to re­spond to your at­tor­ney’s re­quests for in­for­ma­tion as soon as you are able to. If for some rea­son you don’t think that you can meet one of the dead­lines set by the Court let your at­tor­ney know in ad­vance – he might be able to get an ex­ten­sion. For larg­er busi­ness­es it’s of­ten use­ful to des­ig­nate a ‘point’ per­son for the case who will re­spond to re­quests for in­struc­tions and at­tend the hear­ings.

* Ask ques­tions

Some­times things that seem rou­tine to at­tor­neys are con­fus­ing to peo­ple who are un­ac­cus­tomed to the lit­i­ga­tion process. You should un­der­stand what the le­gal, fac­tu­al and ev­i­den­tial is­sues in dis­pute are in the mat­ter and what your at­tor­ney’s ‘strat­e­gy’ for deal­ing with the case is. A good at­tor­ney will take the time to ex­plain this to you. If there is any­thing you don’t un­der­stand or don’t feel com­fort­able with, ask him to clar­i­fy or ex­plain it. If you need to sign any­thing make sure you read it through care­ful­ly and un­der­stand it be­fore you do.

* Have re­al­is­tic ex­pec­ta­tions

The law might not al­ways make sense or seem fair to you, but it’s still the law. Your at­tor­ney can on­ly work with­in the bound­aries of the le­gal sys­tem. A good at­tor­ney will tell you what you need to know – in­clud­ing the weak­ness­es and short­com­ings in your case – and not just what you want to hear. If your at­tor­ney ad­vis­es you that it might be in your best in­ter­ests to set­tle or drop your case, give gen­uine con­sid­er­a­tion to his ad­vice. If you do try to ne­go­ti­ate a set­tle­ment with the oth­er side, re­mem­ber that nei­ther you nor your at­tor­ney can force the oth­er side to agree with you or to be rea­son­able. Of course you should al­ways re­mem­ber that your at­tor­ney owes a re­spon­si­bil­i­ty to you as well to lis­ten, be re­spon­sive and act in your best in­ter­ests.

Adopt­ing a few of these sug­ges­tions can great­ly de­crease the stress of the lit­i­ga­tion ex­pe­ri­ence, max­imise the val­ue that you get out of your le­gal rep­re­sen­ta­tion and im­prove your chances of suc­cess.

Cather­ine Ram­nar­ine is a part­ner at M Hamel-Smith & Co. She can be reached at mhs@trinidad­law.com

Dis­claimer: This col­umn con­tains gen­er­al in­for­ma­tion on le­gal top­ics and does not con­sti­tute le­gal ad­vice