Written by Val Hemminger, Lawyer and Mediator
Plaintiff litigation is what happens when you sue someone.
The steps taken in when you commence a law suit will occur at a different pace for every matter and are governed by the Rules of Court of British Columbia.
The different pace for each matter depends on many things, including actions the Defendant takes, the position the Defendant takes, court schedules, the lawyers’ schedules, the work load of our law firm even the decisions that you, as the client might make.
Like most law offices, a lawsuit at Hemminger Schmid will take up to two years or even longer to settle or go to trial.
Despite the many differences, most lawsuits do go through the same general stages. These stages are not always in the same order, however.
It is also important to remember that throughout the process, offers of settlement, settlement discussions, and actual settlements may happen at any time. At Hemminger Schmid we try our best to settle your claim in a fair and reasonable way before proceeding to trial. Sometimes we are unable to reach a settlement with the opposing lawyer and their client. In that case we will recommend going to trial.
1. We Might Do An Initial Review of the Law
When someone consults one of the lawyers at Hemminger Law Group regarding whether or not to commence plaintiff litigation, the lawyer will either likely have a background in that particular area of law or will proceed to do some legal research to assist them in giving that person some detailed advice in relation to their particular problem.
2. Gathering the Facts
With our client’s help, we gather all the available facts concerning the claim, including interviewing and taking statements from witnesses. We sometimes hire investigators or experts to help us, so this step can involve expenses.
We normally make an offer of settlement at this point. If we are not successful in settling the matter at this point, we proceed to the next step.
3. Starting the Lawsuit
We begin plaintiff litigation by preparing the necessary court documents and filing them in court. In a Supreme Court of British Columbia civil matter this is referred to as a Notice of Civil Claim.
In a family law matter, it is called a Notice of Family Claim.
Once the lawsuit is filed at the court, we will have a copy of that lawsuit served on all of the Defendants.
The Defendant will likely then hire a lawyer after this step. In an ICBC case, ICBC will hire a lawyer for the Defendant in most cases.
4. Interim Applications
After we start plaintiff litigation, but before trial, we may have a dispute with the other lawyer about a certain matter in how the lawsuit is being conducted. If we don’t agree, sometimes we find it important enough to ask a judge for an order to settle the dispute.
Going to court to ask for an order prior to trial is called an interim application.
For example, we might ask the court to order that the Defendant show us a particular letter or document that the Defendant would rather not let us see.
Additionally, we might obtain an order for the disclosure or records or documents from a person or organization that is not involved in the law suit.
5. Exchanging Lists of Documents
In plaintiff litigation the parties are required to exchange all documents that may be relevant to the proceedings. They first list all of the documents in a document entitled . . . wait for it . . . a “List of Documents” (I know right?!). A party is obligated to give the other party all of the relevant documents even if they think it would harm their own case.
6. Examination for Discovery
After gathering the facts, in most civil cases, the civil procedure rules require that we arrange and conduct an examination for discovery. At the examination for discovery, we question the Defendant under oath about the matter. This information may be used against them.
Of course it rubs both ways. The Defendant’s lawyer may also ask our client questions under oath. That information may be used against our client.
We also ask the Defendant to show us what relevant documents the Defendant has, and to tell us about all relevant documents he or she has ever owned or had access to.
7. Review of the Law
Once we have a good idea of all the facts, we most often take a further review the law. We then give our client our legal opinion about what the likely outcome of a trial would be. This is often a time we give a further estimate as to the cost of the trial. We will also likely give a range of what kind of funds you may expect to spend or ultimately get awarded. We also will again set out our opinion relating to the likelihood of the success relating to your plaintiff litigation.
8. Negotiations, Settlement and Mediation
You may have heard the expression about legal matters being settled “on the courthouse steps.” This is almost literally the case at times.
There are many opportunities to settle a case prior to commencing trial.
Just before trial is an opportune moment as to when parties might get really serious about settling.
When it is appropriate, we talk with the Defendant’s lawyers to see if they will settle the claim. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. If the claim is settled, it does not go to trial.
Just because a person commences plaintiff litigation, most of our clients are happy to know that trial is not necessarily inevitable.
The lawyers at Hemminger Schmid almost always recommend that we attend mediation in an attempt to settle the matter (even if we don’t settle, it is really good trial preparation and an opportunity to see the case from the other party’s perspective. Plus we might end up settling in a way that makes our client happy.
9. Preparation for Trial
We prepare the case for trial, including getting all the necessary documents together, arranging for witnesses to attend, setting out questions we will be asking witnesses and preparing any legal opinions.
We act for our client at the trial. When the judge has decided the case, which could be a few days or weeks (or even months) after the trial, we prepare the court order for the judge to sign, or approve how the other lawyers write up the judgement to make sure it is correct.
11. Completing the Claim
We then do all the work necessary to complete the claim. This may include assisting our client with collecting the money from a settlement or judgment.
Do you need to speak with a lawyer about this or any other legal matter? Please click here to contact us for a consultation.
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