What is litigation

What is litigation?

Put simply, it is a formalised process in which lawyers represent clients to produce a determination of the dispute by a judge.

In most developed countries, the status and role of a lawyer is regulated by statute. To have the right to represent another for payment requires that the individual has a degree (not always a law degree) and a vocational qualification. There are variations in the extent to which the lawyers’ monopoly is protected. In some countries, it is a criminal offence to claim to be a lawyer and receive payment for offering legal advice. Further, unqualified people are prevented from representing others in court proceedings, whether they are paid or not. Sometimes, people are not even allowed to represent themselves, e.g. limited companies can be required to appear in court through an independent lawyer.

The process itself begins with one side giving the other a formal notice that proceedings are about to begin. This is a customary warning to encourage the other side to settle without incurring the costs of a case. If such overtures fail, the more aggressive side issues a claim which sets out what the main facts are said to be and why this should give the claimant a remedy. The defendant then has the right to clarify the details of the case.

One of the big tactical fears is that the claimant may ambush the defendant in court, i.e. suddenly raise new facts or legal issues and give the defence no time to prepare a rebuttal. This forces defendants to expend much effort in seeking a precise definition of the claim, obtaining access to any documents that are going to be relied on, and, in suitable cases, issuing interrogatories which are specific questions of fact that may be agreed, or help to define what the parties disagree. This pre-trial manoeuvring can take months and, sometimes, years.

The problems of an adversarial system
In April 1997, the Australian Law Reform Commission published a series of Issues Papers. IP 20 gave the reason, “1.1 This inquiry arose from concerns that legal proceedings in Australia are excessively adversarial and that this produces undue delay, cost and unfairness in litigation.”

Courts are said to be adversarial because the legal representatives oppose each other in combat before a neutral judge. Unlike the lawyers in the civil law countries, their job is not to investigate the situation in a fair and ethical way and arrive at a consensual solution, but to paint everything in a partisan black and white and leave it to the judge to decide which is the better. This leaves it to the parties to define the issues and to lay out the law as they claim it applies. This forces the system to be about winning and losing which is counterproductive and confrontational because lawyers have an incentive to game the system for their client’s advantage. For example, the lawyers may agree between themselves to define the issues put before the judge narrowly or to limit evidence both sides call.

The judges are caught because they are required to appear to be fair, so will not use their own powers to raise what may seem pertinent issues not canvassed by the parties. If they appear to be overly unsympathetic to one side during the hearing, they may be accused of bias. Most judges therefore remain fairly passive and allow the parties their say. They are not there to limit the earnings of lawyers in long trials. This judicial inactivity permeates to other parts of the formalised system for dispute resolution, where lawyers have manoeuvred themselves into a privileged position where they can prolong proceedings for their own profit.