So, you decided to sue someone...now what?
Recently, I was informed that the Toronto Superior Court of Justice is scheduling trials well into 2020. Is this a symptom of larger populations in Toronto, or of parties refusing to settle and a preference to have a stranger decide their fate? Going to court is like playing roulette. It is not a decision for the faint of heart, and, even though you may have the best litigator in the city, the reality is that that legal advise is only as good as the legal research that your rep has done for your case, their strategy and experience - it is not premised on any psychic ability to determine the outcome of your case and know which way a judge will lean and eventually decide.
After filing a pleading, a plaintiff then has to wait for a defense, or in some cases will receive both a defense and a counterclaim. Thereafter, the plaintiff must Reply (if warranted), and/or draft a Defense to Counterclaim. Once the pleadings have closed, then starts the routine discovery process.
The discovery process is geared towards forcing the parties to disclose any and all documents that exist which pertain to the subject matter of the litigation. Examination for discoveries are held in order to get testimony from the parties. Once full documentary and testimonial disclosure is completed, barring any additional documents that are distributed to each party respectively down the line as they become available, the next step is mandatory mediation.
Mandatory mediation is the hope that the parties will flesh out the real issues in dispute and value those issues in a way that they can reach a monetary settlement to avoid proceeding further. Much of the time, mandatory settlement has been influential in scoring settlements between the parties and thwarting off costly litigation. But sometimes the parties are simply too far apart in what they believe the real issues are, and what their expectations are in terms of what they are owed, or, what they should have to pay out, as the case may be.
Here is where it is important for parties to consider the risks of litigating in court. It is costly, it is time consuming, and it is risky. Don't be a sly party and claim you want to litigate, and then not pay your lawyers' fees. Sure, there is that consolation prize at the end that if you are the successful litigant at the end of the line, the other side will have to pay a percentage of your legal fees. This is true. But, is this enough to take the risk? Where you and your lawyer feel that you have a strong case that speaks volumes, and is thoroughly supported by evidence and legal principal, the risks are not high - you should proceed to court. But, this should sound the bells and light the bulb to the other side that unless they are willing to produce a reasonable offer capable of acceptance, the risks to them are simply too high. This is premised on the plaintiff being reasonable enough to accept less than what they bargained for, but, be a winner in the end in terms of time, emotion, and overall cost.
If you are a plaintiff or defendant considering your options and stuck not sure which way to decide, settling and losing some money, or going all the way down the gauntlet to judgment day, here is some advise to you: weigh what is most important to you with the possibility that the outcome you get from the judge is not the one you expected. Think of what you will lose, if it doesn't go the way you think it will. Talk about it with your lawyer, and listen to their advise. They are your lawyer for a reason. Never litigate out of principle. You may find that others do not share your principles, and you may end up losing more than you bargained for.
Pre Trial is the next step - that one last ditch attempt for the parties to appear before a judge (though not the same judge they would have at their trial) and attempt to settle. The pre-trial judge will lay out the issues, their legal thoughts, attempt to bring the parties together in settlement, and if no solution is reached, set the matter down for trial and deal with any administrative and procedural issues.
Trial - Judgment Day. Don't expect to waltz in there and pull off a scene from a movie, or re-enact Gerard Butler's infamous court room scene while addressing the judge. Surely that would be one way to kiss your 401k goodbye. Court is a place of rules; etiquette; respect. Each party will have an opportunity to make their case and subsequently a judge will make a decision. If however, the parties are determined to settle in advance of the close of trial, this is always a welcomed relief (as far as I have heard judges sigh in their coffee) by the judiciary.
Civil litigation is exciting; life changing; law changing in some cases. But it is not for the faint of heart. It is not for those who are litigating just for the sole purpose of revenge, or principle, or greed; you really should know why you want to go to court before embarking on that journey. to do so otherwise, may mean the difference between a raging storm and a peaceful sail into the sunset.