Legal strategies during a lawsuit
Introduction
When involved in a lawsuit or legal action, one needs a legal strategy. A haphazard or random approach usually does not work. In a lawsuit or litigation one can be the initiator as an applicant or the plaintiff. On the other hand one can be sued as a respondent or defendant.
Either way there is need for a legal strategy. In this article I give some hints on some of the key considerations in a legal strategy.
Legal strategy
This is essentially a plan of how to deal with a lawsuit with the intention of winning the matter as the one suing or being sued. Remember litigation is a legal contest.
I will look at the legal strategy initially from the viewpoint of the one suing and then for the one being sued.
The same legal strategy framework may apply to labour matters such as hearings or even in the case of arbitrations.
Legal strategy for the one suing another
Some of the key considerations include the following:
Understanding of litigant’s grievance,
Clarity as regards remedy sought.
Options to achieve the desired outcome.
Evidence.
Timelines.
Anticipate the opposing party’s response.
Summary of key stages and timelines.
Consideration of strengths and weaknesses of the matter.
Grievance
When a litigant approaches a legal practitioner he or she needs to understand what his or her grievance is. The legal practitioner will assess and advise whether the grievance amounts to a violation of one’s rights.
In other words for legal action to be taken, there has to be cause of action such as breach of a binding contract.
Remedy
A litigant also needs to be clear of the remedy he or she wants against the alleged offender. For example one may wish to be declared the legitimate owner of an asset and may want consequential relief related thereto.
Options
A legal practitioner normally advises clients on options that are available to obtain the desired remedy. For example, this may be done through court applications, chamber applications or action proceedings through summons.
Such legal actions may be taken through certain courts, for example, magistrate’s court (civil division), labour court, high court commercial division or civil division, or criminal courts through the involvement of the police, etc.
Such a strategy is usually informed by the lawyer’s understanding of the law and court rules. A wrong procedure may be fatally defective. Non–compliance with court rules may also cause a matter to be struck off the court roll or be disposed of.
Evidence
This is probably the most important part. Court cases are usually won on the basis of evidence that convinces the court or lost if such evidence does not exist or is insufficient.
Evidence can be in different forms such as documentary or testimonies by witnesses. Documentary evidence may include contracts, acknowledgement of receipts, etc.
Where a party is claiming debt that is not documented, it might be necessary to start with minuted meetings or a signed acknowledgment of debt.
Timelines
It is also important to take note of the timelines. At times some remedies may take longer than desired such that they will not be ideal. In some situations, an understanding of timelines helps a litigant understand the journey to be travelled.
Anticipate the opponent’s response
Generally, litigants are confident of their cases. That notwithstanding, a legal practitioner should discuss with a litigant to anticipate what the other party is likely to raise and address or pre-empt the issues.
This may even involve role play where for example the lawyer or someone acts as if he or she was the opposing party and raises uncomfortable questions to the litigant.
I know many litigants who avoid such discussions or simply dismiss the other party as having no case at all.
Consider strengths and weaknesses of the matter
A litigant and his or her legal practitioner are advised to objectively assess the strengths or weaknesses of a case. This helps to deal with the opposition’s responses.
At times a party may then instruct its legal practitioner to negotiate or delay litigation to allow for the gathering of evidence.
Legal strategy for the one being sued
The one being sued as a respondent or defendant may come up with a legal strategy that covers the following:
Understanding of the dispute
Whether one agrees with the allegations or remedies being sought.
Any counter-claims against the one suing.
Whether one wants to defend or negotiate.
If one wishes to negotiate whether to do so before or after filing opposing court papers.
Choice of legal practitioners.
Legal practitioners may specialise in commercial law, labour law, criminal law, etc. A legal practitioner may want to instruct an advocate.
Evidence available by way of documents or through testimonies of witnesses.
Special defences available, for example, prescription, lack of jurisdiction, no cause of action, etc.
When to raise points of law that may dispose of the matter.
Some litigants may want to wait until the very last minute such as the day of court appearance to raise such points.
Such points may be in the form of points in limine.
Conclusion
It is advisable for litigants and their legal practitioners to come up with practical legal strategies.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB (UNISA), B.Acc (UZ), Hons B.Compt (UNISA), CA (Z), ACCA (Business Valuations) MBA(EBS, Heriot-Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his personal capacity. He can be contacted on +263 772 246 900 orghofisi@hofisilaw.com or gohofisi@gmail.com. Visit www//:hofisilaw.com for more articles.-herald
