Should I go to court?

The million dollar question asked by almost every client we have. Nobody wants to go to court and lose!

The same is true of lawyers who go to court. I can personally attest to the awful feeling that you get as a lawyer when a clients court case has ended unsuccessfully. It is a horrible feeling, even when you thought the chances of success were slim.

Nevertheless, lawyers are asked to give their legal opinion on the merits of a persons case. We are asked to evaluate the chance of success and are directly asked “will I win in court“.

It is always a difficult question to answer and the answer will change over time. That’s because when you start a court case a lawyer doesn’t know all the facts and evidence yet. Whilst our own clients can provide some evidence, they don’t know what the other side has. We only know once the pleadings are completed and disclosure is made.

Take a read of our civil litigation page to find out what ‘pleadings’ and ‘disclosure’ mean and how they fit into to litigation process.

You’ll see that they happen after you’ve already made the decision to go to court. That means any advice we give you to help make the decision is generally only based on what we know at the time. Whilst we can contemplate what the arguments against you might be, we can’t be sure.

That doesn’t mean our advice is guesswork though. Because we focus on civil litigation, we deal with court proceedings and claims day in day out. So our assessment of the merits of you particular case, and how it might go in court receives the benefit of our past experiences litigating similar claims.

Other Factors

The legal merit of your claim is not the only thing you should think about. Others things to consider when deciding to go to court or not, include:

Legal costs – Lawyers and court proceedings can be an expensive exercise and there is never a guarantee you’ll ever recover all your legal costs if successful. At best, you’ll likely only recover a portion of them. That means you’ll always incur some costs, even if successful. You need to contemplate the liklihood you’ll lose some money and factor that into the overall balance of what you might gain, financially.
Stress – A disputed legal proceeding can be a stressful experience. It basically involves continually arguing your point with another party. You’ll need to respond to any allegations or accusations they may throw at you. Sometimes, it can become personal, vindictive and hurtful. Some people deal with stress better than others. Avoiding stress can be an important aspect of a decision.
Time – A litigation played out through the Queensland Courts takes time. It is a process whereby each party is given timeframes in which to undertake certain tasks and those timeframes can blow out and extend over long periods. Even simple debt disputes can take up to 12 months to find their way to a final trial. More complicated litigation can extend over years. Be mindful of the time the litigation will hang around.
Labour Intensive – You can’t just pass on a folder of documents to your lawyer and leave it up to them to deal with it. You will need to read every letter received, every document produced and give instructions to the lawyer on how you want to respond and proceed. The fact is, we can’t do it without you. Some cases, especially those without substantial documents, will require lots of client interaction and instructions. You need to factor that into your own personal circumstances, employment or business dealings in your decision.
Risk – Last but by no means least! There is always a risk you will lose. No lawyer can guarantee a win because your lawyer doesn’t make the ultimate decision. The judge will make the decision based upon what they see, read and hear at trial. You need to contemplate that they just might not believe you, but trust what the other side has to say. Risk is always a factor to bear in mind when making your decision.

Weighing up all the factors to make a decision to go to court or not is not easy and it will be different for every person as they’ll add more weight to one factor than others. A lawyer cannot (and should not) make the decision for you, it is yours to make and I hope this article has given you some food for thought in making your decision to go to court or not.

Take a look around our website at the practice areas we focus on and be sure to read up about why you might want to choose us as your lawyer.

If you’d like to meet us and chat about your legal matter then get in touch a book a an appointment.

DISCLAIMER: The above article was written at a specific point in time in the past and is provided as general guidance only. It is not intended to be specific legal advice to any person’s particular circumstances who may be reading it. We do not recommend you use this article as a replacement for obtaining proper legal advice on your issue and encourage anyone reading the article to obtain legal advice to ensure the above information and guidance remains valid and suits your particular circumstance. In our experience, there is no ‘one size fits all’ to legal problems!