Our litigators provide advice and counsel in a wide range of civil disputes and litigation.
In particular, we provide representation in the following
- construction litigation, including builders’ lien disputes and liability issues, for builders, owners, contractors, subcontractors and suppliers;
- condominium disputes, including disputing over governance as well as leaky condominium claims on behalf of both plaintiffs and defendants;
- real-estate related litigation;
- commercial and contract disputes;
- Company litigation including shareholders’ and partnership disputes;
- insurance litigation issues arising from disability, fire losses (arson, accidental), hazardous goods handling and coverage disputes;
- collections and security enforcement;
- employment law, including issues related to wrongful dismissal claims; and
- appeals and hearings before various administrative boards and tribunals;
Although our litigators are experienced trial lawyers, we understand that it is often costly and time consuming to pursue a matter throughout the course of litigation to trial. As such, we will work to ensure that all possible steps are taken resolve litigation at the earliest stage and in the most cost-effective manner for our clients, whether that be through traditional negotiations or alternate methods such as mediation or arbitration. If you have any questions about a litigation matter, please feel free to contact us.
ANATOMY OF A LAWSUIT
Most claims are settled by agreement between the parties. Going to trial can be expensive and the outcome is never certain. Thus it makes sense in most cases to try to reach an agreement based on what both sides think the outcome of a trial would probably be. However, even most pre-trial settlements are reached within the context of a lawsuit. It is the litigation process that will typically produce the information your lawyer needs in order to advise you as to what terms would make a fair settlement. The following is summary of the stages a typical lawsuit in the Supreme Court of British Columbia (Small Claims Court has a simpler process). Bear in mind that every claim is different and yours may not follow exactly the pattern set out below. In this section we discuss pleadings, discovery, expert reports, negotiation and mediation and trial.
Most claims start with a writ of summons and statement of claim. The writ of summons is the document that commences the claim and requires the defendant or defendants to answer to it. The statement of claim sets out in numbered paragraphs the facts that the plaintiff relies on to establish his claim. Both documents are filed in the court registry and served on the defendants. The defendant must then, within a limited time, file an appearance to the claim and statement of defence, in which he will typically plead various defences to the claim that he hopes to be able to prove. It is important to note that the pleading contain merely allegations, not evidence.
Discovery consists of two phases – discovery of documents and examinations for discovery of the parties themselves.
Both sides are required to produce list of all documents in their possession relating to the facts alleged in the lawsuit by either side. In a commercial dispute, these would typically include contracts, invoices and correspondence between the parties leading up the dispute. In a personal injury matter, the documents could include statements made to an insurer or papers relating to the repair of the automobiles involved in an accident. Some documents, such as communications between lawyer and client are considered privileged and do not have to be disclosed.
Some documents may not be in the possession or under control of the parties to the lawsuit, such as a doctor’s or employer’s records in the case of a personal injury claim. Often, these records can be obtained with a party’s consent, but in some cases a court order will be required to compel production of record from persons not directly involved in the lawsuit.
Once listed, the lawyers for both plaintiff and defendant may obtain copies of the other’s documents and inspect the originals if necessary.
Typically after there has been full disclosure of documents, the parties will conduct examinations for discovery. Each lawyer is entitled to question the opposing party under oath about the facts in issue in the lawsuit. Although no judge is present, a court reporter takes down a transcript of the questions and answers, which may be used as evidence at trial, should the matter proceed that far. However, the principal use of the examination for discovery, is to discover what the evidence of the litigants will be at trial and to try to obtain admissions from the opposing party that will damage its case and which might not otherwise be brought to light. Once this process is completed, both lawyers are in position to know the strengths and weaknesses of the other’s case and give advice to their clients as to what a fair resolution would involve. Most cases settle some time after the examinations for discovery.
3. Expert’s Reports
There is a general rule that witnesses can give evidence only of facts they have knowledge of, and not opinions. To give an opinion into evidence, a witness must be qualified as an expert witness. To rely on an expert’s opinion, a party must give a written statement of the opinion to the opposing party before the trial. In many cases both sides will obtain and exchange expert’s reports that will form part of the evidence at trial. For example, if you bring a claim for personal injury, your lawyer will likely obtain an opinion from your doctor as to the nature of the injuries sustained and as to the likely future progress of your recovery and the defendant may require you to be examined by and independent doctor. The exchange of expert opinions will further assist your lawyer in assessing your claim.
4. Negotiation and Mediation
Up to this point, all of the activities described are regulated and formalized according to the Rules of Court and both sides may invoke the power of the court to force compliance with the Rules if needed.
Settlement negotiations, however, are not usually formalized and may take place in a variety of ways. These may include simply an exchange of letters between the lawyers, or even a series of telephone calls. Some claims call for more intensive negotiation and often a mediation will be arranged. Both litigants and their lawyers will meet together with a mediator, who will not impose any solution, but will order the discussions and from time separate the two sides so as to allow private discussion about the other side’s proposals. Most mediations will result in a settlement by mutual agreement.
Your lawyer will never impose a settlement on you. All offers and agreements must be agreed to by you, the litigant. Your lawyer will give you advice, but not impose a position, nor tell you what to do. Rather he will make recommendations and then act on your instructions, so long as such instructions are within the law and otherwise appropriate.
A small percentage of lawsuits cannot be settled by agreement. It may be that one side to the dispute is simply unwilling to accept a reasonable resolution, or has a mistaken understanding as to the relative strengths of each party’s case. Those claims will proceed to trial, where either a judge or jury listens to the parties evidence and examines documents introduced into evidence and then imposes a decision in the form of a judgment or verdict. In some cases, it may be possible to try the matter using only affidavit evidence, rather than have the parties give oral testimony in the courtroom.
The unsuccessful litigant (which may be determined by comparing the outcome to formal offers made before trial) typically will have to pay part of the successful litigants cost of bringing the lawsuit, in addition to any damages that may be awarded.