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2 Week 1: Introduction to civil litigation and dispute settlement Context of civil litigation How litigation works Lawyer s role The Courts Jurisdiction Some basic ethical considerations Ask the right questions: 1. What is the person s issue about? 2. What exactly happened? 3. Is there a legal issue? 4. What does the client WANT? 5. Are there legal avenues/options? 6. Are there other (non legal) avenues/options? Must know the rules, understand the ways to resolve disputes and be able to work out a strategy to achieve client outcomes = high level navigation skills. The Litigation Maze Navigating the litigation maze requires a range or areas of knowledge: The Court Rules The Law Human Nature Dispute Resolution Theory Precedent Cases The concept of justice and fairness Lawyers skills: Problem solving Legal analysis and reasoning Legal research Library and IT Fact investigation, selection organisation and use Drafting and writing Lateral thinking Patience and persistence Client interviewing and advising Negotiation and ADR Advocacy Planning, organisation and management of work Recognising and resolving ethical and professional dilemmas Good communication skills 3

3 Role of legal profession in the Court system: lawyers mediate or translate or interpret the clients stories and goals and facts of cases in a way that enables the court to view them as a legal problem. Lawyers can be seen as gatekeepers to justice. Interesting facts: Only 5% of cases started in court go to trial Of that 5%, only 3% go to judgment So the majority of a litigators work is resolving in one way or another the 95% of cases that don t ever go to trial Lawyers have ethical rules hard and fast rules of ethics and conduct that apply to every solicitor in every situation. Our (ethical) conduct is overseen by the Professional Conduct Board and the Supreme Court. We can be disciplined and struck off for failure to follow the legal professional ethical rules. Rules of the game: In litigation, the Courts devise their own complex rules systems that are intended to ensure that the players (the lawyers and the parties) play by the same rules. This is the primary function of Court Rules. The rules are intended to level the playing field so that cheats, sneaks, bullies and maniacs are controlled. Court rules: Set out the steps you must follow to get through the maze a roadmap for court users; Provide for the Court (Judges) to manage litigation and litigious behaviour to keep it fair; Ensure that the system is not too expensive, too inefficient or unreliable. Unfortunately the rules don t fix up the imbalances in resources, whether they be financial, ethical, skills, emotional, time. The rules presuppose an equality of resources to litigants. Which has never been and certainly is not now the case. The Court s objectives: Promote the JUST (FAIR) determination of litigation Dispose EFFICIENTLY of the court s business Maximise EFFICIENT use of judicial and court resources Facilitate the TIMELY disposal of business at a cost AFFORDABLE to parties There will be: A legal cause of action Loss and damage Remedy Wrongdoer Court 1. Find a court that can manage this Jurisdiction =

4 sort of case 2. Identify a cause of action that arises Pleadings on the facts of the case and articulate the case in a way that the other party and the court understand what it is about 3. Find out what evidence and Disclosure of documents information they ve got 4. Get evidence to support your case Investigation and questioning the other side 5. Prepare for trial Organise and order the information and evidence and material you ve got in a way that can be presented to a court (law of evidence) 6. Go to court and argue the case Trial Getting to trial: Pre action notice Pleadings Disclosure Investigations/Gathering evidence/witnesses Pre trial process Trial Problems with going to court: COST TIME STRESS Can only ever get a legal outcome you can never get other concession or apologies or options that are important to the client by not legal Adverse publicity Even if the client wins they probably won t get as much as they wanted, OR it will cost them half of that they win in legal costs. Or it won t be the whole victory that they wanted, OR they won t think it is fair and won t entirely understand what has happened. Starting the case: Commencing litigation Establishing jurisdiction finding the right court for the case Issuing a summons Pleading the case telling the story and making the legal claim Disclosure and exchange of relevant documents Pre Trial information processes Conferences and ADR >

5 Trial Jurisdiction: common law or statute Court s authority to take in a case depends on either COMMON LAW or STATUTORY jurisdiction. Common law contract, tort, property, equity Statute trade practices, consumer law etc (wherever a statute says a person can TAKE ACTION against another person for breach of this section or act... ) Note: federal court jurisdiction is all conferred by statute. Jurisdiction of Courts The authority of a Court arises from the Parliament that create it territorial jurisdiction. Parliament also limits Court Jurisdiction by: (Look at the Act which creates the court) Prescribing the Time Limits to take legal action if the time limit has expired, the Court does not have jurisdiction; Limiting the $ amount that different courts can deal with; Limiting the type of matter that courts can deal with; Limiting the type of remedy that courts can give; Specifying which court certain types of matter can go to; Who chooses? The plaintiff chooses the jurisdiction (court) as they issue the Summons. The Defendant can challenge the choice of jurisdiction, on the basis that there is no legitimate connection with the chosen jurisdiction, or another jurisdiction is better. (see WK 7). This limits forum shopping. Jurisdiction can also be moved by either the P or D. Why? Different Court might offer advantages to the P or D: Better damages in some states Can call witnesses Jury trials for civil matters Statutory limitations in one jurisdiction and not another Primarily convenience Note: the substantive law of the jurisdiction in which the cause of action arose governs the case, wherever it is heard. The procedural law of the court that the plaintiff chooses governs the court process. Time Limits are substantive law. Litigation before you start: Who is the Plaintiff? Are there more than one? Can you act for both? Is there likely future conflict? Is there a Defendant? Are they known? Do they have any money? Are there other Defendants who could share liability? E

6 Do you have a good case? How much evidence do you need to get? How much will it cost? Are there other ways than litigation? Initial steps of litigation: Find a Court with jurisdiction Check that your action is within time Decide who to sue Check that the Court can offer the Remedy that you want Read the Court Rules and find out what you have to do to issue proceedings PRE ACTION REQUIREMENTS: SA RULE 33 Offer of settlement before action Designed to get parties to discuss case bfore they sue to encourage settlement. Costs penalty if you don t do it. Next: Issue proceedings (E.g. a summons and a statement of claim) Serve the Summons and SOC on the Defendant(s) Tell the court that you have served the Summons etc (Affidavit of service) Ethics and litigation: LEGAL ETHICS Australian Solicitors Conduct Rules Legal Practitioners Act 1981 (SA) General ethical principles relevant to the decision: e.g. ideas about justice, responsibilities to others, social and environmental responsibilities etc Any particular responsibilities associated with being a lawyer Note: not easy, not necessarily a clear consistent answer. Legal practitioners have obligations to: The law/society The court Clients Others The profession Adversarialism <

7 Prioritises clients interest with the limit of not breaking the law. Advantages: Emphasis on the need to act in the best interests of the client Good fit with criminal defence work Provides straightforward answers to ethical questions Dangers: Obligation to adhere to the letter of the law allows advocate to exploit loopholes Dangers for clients: Escalating costs, delays, break own relationships Assumption: o All clients have lawyers who act as their adversarial advocates o Courts act as the guardians for justice White Industries v Flower & Hart (1998) 156 ALR 169 Developer was building a shopping centre using builder White Industries. In order to delay contractual payments, Flower and Hart advised him to sue for fraud. Held: Goldberg J found that a solicitor had initiated proceedings with no substantial prospects of success The solicitor s purpose was not to vindicate a right of the client, but to postpone payments by his client under a building contract By seeking to effect an object beyond what the legal process offered the solicitor s action was an abuse of process. McCabe v British American Tobacco Rolah McCabe sued BAT after contracting lung cancer. At first instance the Victorian Supreme court struck out BAT s defence as they had destroyed so many documents critical to McCabe s case that there was no possibility of a fair trial. Clayton Utz had advised BAT on their Document Retention policy that had sanctioned the document destruction Clayton Utz comment: Moral judgements have no place in the advice a lawyer gives a client, according to the CEO of Clayton Utz... asked what role a lwyer should play if a client was proposing to do something that was not illegal, but immoral, said: I m struggling to see where there would be a case where that would actually arise... a lawyer might advise on the appropriateness of different strategies, but it was wrong for a lawyer to make moral judgements Parker and Evans p 16. Week 2: Alternative Dispute Resolution M

8 WHY Why use ADR? How, where and when? What process? Concept of good faith ADR in the shadow of the law o Interrelationship of ADR with the courts o Legal issues in ADR o Legislative framework The interests of litigants influences the best approach to trying to resolve disputes. Some interests are better served by non-litigious methods. The goals of litigants may be better served by alternatives to litigation and some goals are not achievable by litigation. Conduct Rule 16.2 reflects this: o Must give client detailed advice about ADR options. ADR is an alternative to an adjudicative rules driven process where a Judge determines the outcome and the parties are bound by it. KEY FEATURES ADR is always voluntary you cannot be forced into it Outcomes only be agreement if the parties do not agree on the outcome, it is not resolved Process can be decided by the parties, and is flexible Occurs outside the court process, but still has to be fair Always conducted by a neutral third party It is private and confidential both the process and outcome PROCESS DIFFERENCES The more facilitative or cooperative the more control the parties have over the process AND the outcome. As the processes become more directive and adjudicative the parties have less control over process and outcome. WHEN Can be used before, during and even after litigation, and different types of ADR can be tried in the same dispute. The earlier the better: SCR 33 and the Conference Structure recognizes the importance of early ADR. 7

9 ADR MAKING THE CHOICE Process Choices Outcome Choices Cost Public knowledge Speed Test case Privacy Public punishment or vindication Control over process Credibility of outcome Control over outcome Enforceability Privacy HOW TO GET TO ADR There are three main paths to ADR: 1. Parties just decide to do it. Find a mediator or conciliator or arbitrator and take it from there. 2. Contract: Parties have prior binding agreement to go to ADR if a dispute arises. The original agreement to go to ADR is voluntary, and then they are bound to do so if they have agreed. 3. Parties are direct to ADR by Court after proceeding initiated. Aversion to ADR There is a social and cultural aversion to ADR in the Western Adversarial system: Resolving disputes by competition/court is traditionally popular Aversion to trying to sort it out and tendency to go into dispute mode results in: o Individual rights focus This contrasts with other cultures, particularly many Eastern cultures, where: mediation/resolution is intrinsically valuable and inherent in the legal system resulting in: o Social order focus Legal perspective Lawyers and clients often assume that readiness to mediate indicates weakness or lack of confidence in the case. This is a pervasive hangover from a different cultural perspective. ADR & The Courts ADR that occurs voluntarily prior to litigation is not subject to any oversight or evaluation by the Court even if litigation is later initiated. ADR that arises under a contract between the parties OR by Court referral may be subject to evaluation by the court compliance with agreed processes and/or good faith participation may be a precondition to litigation. T