Getting into litigation is an important decision to make. There are many considerations that need to be addressed in all points of the litigation, before starting and when further information comes to light. Here are some concepts that all litigators and potential litigators should know and ask their lawyers with:
1. Legal fees
In Ontario, the winner of a lawsuit generally receives part of the attorney's fees from the court at the end of the lawsuit. There are numerous factors under the Rules of Civil Procedure that the court will take into consideration when allocating costs and ultimately the decision is purely at the discretion of the court. However, as a general rule, litigants should not expect to recover 100% of the legal fees they pay to their lawyer, even if they are fully successful in the litigation. Since the loser is often doomed to pay some of the winner's costs, it is vital to weigh your chances of winning and not only what your potential legal fees are for you, but also your exposure to negative rewards if you are not successful too. in litigation.
Two. recoverability
While winning is often the goal of a lawsuit, winning without a chance to recover anything makes Pyrrhic victory. It is important to assess and reassess whether or not the other party will have the ability to pay if you can prove your case as a plaintiff or defend your case as a defendant and receive your costs from the plaintiff.
3. Time and stress
An often underestimated factor in litigation is the time and stress involved. You will need to make important decisions throughout the litigation process on the strategy, deal with witnesses, be examined under oath and discuss the options for resolution. Although your lawyers are available to answer your questions and provide great advice, it is often a long, costly and stressful process. Particularly with the addition of COVID to the backlog of court cases, it takes years for cases to make their way into a courtroom; most never do what the parties prefer to reach a negotiated settlement.
Four. Accommodation is normal
The vast majority of cases are resolved; somewhere in the 95% + range. Although some lawsuits have some steps that go to court, such as a pre-trial motion, cases are rarely resolved by a judge or jury after a trial, let alone appeal after a trial verdict. The parties should not feel guilty about reaching an agreement - it is economically rational!
Typically, when considering a settlement with your lawyers, you will discuss the risks and benefits of continuing with the lawsuit; its best and worst scenarios; your attorney's opinion on the strengths and weaknesses of your case; and the advantages and disadvantages of liquidation.
An agreement means, of course, that you don't get a judge to decide your case with a generally published decision. It also means that all parties are certain of the results, so no one "rolls the dice". It also puts an end to the parties paying the ongoing legal fees associated with the progress of the dispute. As lawyers often say, a sign of a good deal is a business where everyone leaves unhappy. While it is not my desire to make my clients unhappy, there is some truth to this statement.
Conclusion
It is important to constantly evaluate and re-evaluate your position in litigation as facts change or new facts emerge or even as the law evolves above the contentious court.
This way you will be ready for success and will allow you to set and restore your expectations for the future.