Litigation is a formal process to resolve civil disputes between two parties. Adversarial in nature, litigation begins when two people or organizations disagree on a legal issue.
The party who initiates the process is the plaintiff, while the person on the receiving end of the lawsuit is the defendant. Each party will provide the court with a formal statement of their case, called a pleading.
After the court receives the pleadings from both parties, the discovery process begins. In discovery, each party discloses all the documentation relevant to the case. Then, each side will prepare to argue the case before a judge.
The litigation process ensures that each party will receive a fair hearing by the court. Since issues that give rise to litigation usually involve large sums of money, property ownership, or compensation for injuries, it is a key component of federal and provincial law.
Some factors that cause a case to go to litigation are when the parties cannot settle a dispute independently, through arbitration, or with a mediator. For that reason, each party should retain an experienced litigation lawyer who can provide the compassion, support, and legal knowledge to steer them through the often-complex process.
Alternative Dispute Resolution Methods
Since the litigation process is so complex and lengthy, many parties choose an alternative method to solve their disputes outside the courtroom. Sometimes, the parties can settle their differences without the stress and expense of litigation.
Alternative dispute resolution (ADR) methods include the following:
Arbitration: Although arbitration still retains the adversarial aspects of litigation, it is a process in which both parties agree to allow a third party to resolve the dispute.
Mediation: In the mediation process, the parties agree to bring in an objective third party to help them negotiate an agreement. Courts often encourage parties in a dispute to use the mediation process instead of escalating the situation into a courtroom battle.
Settlement negotiations: Some disputes can settle outside of the courtroom by the parties themselves through informal meetings to negotiate a settlement. They can also enlist the help of a third-party expert in the matter at hand, provided both parties approve of the subject matter expert.
Failure to Settle
A failure to settle occurs where the parties cannot reach a settlement during a dispute resolution conference. For that reason, the case often must go through the litigation process, where a judge will make the final decision.
For example, if one of the parties were in noncompliance with the terms negotiated in an alternate form of dispute resolution, the case might need to go to litigation. Or, if a plaintiff in a personal injury case might be partially at fault for their injury or asks for an unreasonable amount of money for damages, a judge’s discretion might be the best forum to sort out the issues in the case.
Also, in cases involving financial, breach of contract, or property claims, your lawyer might send a demand letter detailing the terms on which you would agree to settle the case. If the other party fails to answer the demand letter or contests its terms, you might elect to take your case to litigation if you cannot come to an agreement through alternative dispute resolution.
The complexity of federal and provincial law often results in legal uncertainty. If a dispute falls into that “grey area” of the law, litigation might be necessary to sort out the details before a judge.
Whether in a contract or the law itself, legal ambiguity can often cause a case to go to litigation. Here are some areas where legal uncertainty impacts the likelihood of a case going to litigation.
Uncertainty About the Statute Itself
In matters that involve uncertainty about what a law stipulates, a lawyer with extensive experience in legal interpretation can give you the best chance of a positive outcome. While no lawyer can guarantee a specific outcome, having one who is familiar with a statute’s legislative history can better discern its intent and argue your case.
Courts have a lot of leeway on how they construe a given statute, whether narrowly, broadly, or somewhere in between. In addition, they can create exceptions, exemptions, or privileges to a statute. Furthermore, lobbyists and others can contend for specific provisions, making the law more convoluted and complex.
Poorly written statutes – or imprecise ones – can also lend themselves to uncertainty due to the language they use. Definitions that stray from a word’s customary use, as the Canadian Department of Justice points out, can lend themselves to legal uncertainty.
Without the opportunity for relief through litigation, legal uncertainties can prove detrimental to vulnerable parties. However, with a skilled lawyer who can untangle these ambiguities, clients have a better chance at a favourable outcome.
Uncertainty in Contract Language
Additionally, legal uncertainty might occur when the language in a contract or other document lacks clarity. This situation sometimes occurs in international contracts in which both parties’ nations use the same word for their basic currency, such as “dollar” in Canadian, Australian, and US contracts. In domestic real estate transactions, lacking specifics in a contract can also result in the need to litigate the case in court. This situation can arise in Ontario courts. With a skilled Ontario appeals lawyer, clients have an advocate that can identify uncertainty and navigate the process.
Sometimes, alternate dispute resolution methods fail because the remedies they yield are inadequate to address one of the parties’ needs. Inadequate remedies could include a lowball offer for damages in a personal injury suit or a doctor’s unwillingness to admit responsibility in a professional negligence case.
In addition, if a plaintiff can show that they will suffer irreparable harm, a judge can issue an interlocutory injunction, a pre-trial order to the defendant to stop specific activities, such as infringing on a plaintiff’s intellectual property rights. The bar for such an injunction is high. So, if the defendant wishes to contest this injunction, litigation might be the only way to provide the plaintiff with a positive outcome.
Defendants can also contest their contractual obligations. To obtain a remedy of specific performance, a court order compelling the defendant to fulfill its obligations to the plaintiff, the case might need to go to litigation.
Understand Your Reasons for Litigation
It’s critical that clients understand why their case might need to go to litigation. Your lawyer should, of course, explain their reasons for litigation, along with all the possible case scenarios that might occur if the case goes to court.
If you think your dispute might be headed for litigation, give yourself the best chance for success with an experienced litigation lawyer. With Allan Rouben’s more than 35 years of experience in litigation, appeals court, and other legal matters in Ontario courts, you’ll have a seasoned advocate at your side. Contact Allan today for your free consultation.