Commercial Litigation is often viewed, especially by your clients, as open warfare. The pattern in which most litigation is conducted resembles something like what is known as Second Generation Warfare1:
- both sides having clear battle lines drawn,
- positions fortified,
- the troops well dug in,
- initial thrusts and counter thrusts to ascertain the strength of the enemy; and
- A final offensive involving all out attack on the battle group of the opposing side.
However, not all litigation is conducted along traditional lines. The following definition of Fourth Generation Warfare bears an uncanny resemblance to how some litigious matters inevitably are conducted:
"Fourth generation warfare is widely dispersed and largely undefined, with a blurred distinction between war and peace and few clear battlefields or fronts. Indeed, it may be difficult to even identify which organizations and individuals are actively participating in the war. Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a physical, entity."2
This paper will attempt to provide a hands on analysis of ways in which commercial litigators can develop their practice so as to avoid allowing a file under their control to develop into "Fourth Generation Litigation".
Matters to Consider Before Litigation Commences:
a. Step 1 – The Initial Contact
The action taken by you prior to litigation commencing is, in most instances, crucial to a controlled litigation, which can minimise the potential to become lost in the myriad of facts and interlocutory skirmishes which can quickly turn a simple piece of litigation into a complex one.
While it should go without saying, one of the most important aspects to any litigation is obtaining a clear, comprehensive set of instructions from your client. This will take longer than the half hour or hour of face to face time that you will have initially set aside for your client. Ask probing questions of your client at the initial interview. This is the time in which your client will feel that s/he has been wronged and has suffered irreparable damage as a result, which must be recompensed no matter the cost. In the absence of asking the right questions of fact, which the client would be more than happy to turn a blind eye to, you will not be able to form a sound judgement as to the clients’ chances of success.
b. Step Two - Initial Advice
Be sure that you do not proffer an opinion on a case until you have the facts that you require to do so. It is often that first verbal advice that the client will remember, and that is the one which will lead them to decide on embarking on a lengthy and costly litigation. Review any relevant documents. This is another fundamental, but do not simply take your client’s verbal instructions on what documents exist, but ensure that you call for the documents to be produced and examine them carefully, as this will ensure your advice is as comprehensive as it can be at this early stage. Keep your focus at this time not simply on whether the facts of the matter establish a cause of action, but equally on whether that cause of action, if proved, will result in a claim for damages, and if so, in what estimated amount.
c. Step 3 – Provide a costs estimate
Division 1 of Part 4 of the Legal Practice Act 1996 governs the type of information 3 that a practitioner must give to a client with respect to legal costs. It is critical to advise the client, as soon as you are able to after forming a view on the merits of the proposed litigation and the estimated damages, of the costs that could be expected to be incurred through to trial, and the recoverability of those costs in the event of a successful result. Time should be taken at this stage to reflect on the type of dispute, what is known of the opposing side (how will they contest the litigation) and what factors could be envisaged that will possibly extend the time and ultimate cost to the client of the litigation. Whilst there may be a natural inclination to "sugar coat" the costs estimate, this must be avoided. There will be few greater detrimental issues to you as a practitioner, and to your firm’s goodwill, than the litigation in which a low estimate of costs is given, the client instructs you to proceed and a pyrrhic victory is achieved for the client, with any award of damages going to meet the legal costs that have been incurred.
d. Step 4 – Consider expert assistance
Assuming that time allows, and the matter warrants it, consider the use of experts before commencing a litigation.
The use of accountants is a perfect example here:
A client comes in to see you with instructions on a shareholders dispute, which you advise is likely to prove the elements necessary for an oppression action3. Your advice is that the most likely relief granted by the Court will be an order that your client’s minority shareholding be bought, at a fixed value. Your client has had advice from his taxation accountant that his shares could be worth "anything up to $200,000". What should you do?
The financial records of the company must be obtained and you should speak to the taxation accountant to make sure you understand how that opinion has been proffered.
Remember too, that the valuation of a shareholding in a business can be a very complex issue, for which neither you, nor that taxation accountant will have the necessary expertise to advise your client.
Instead of allowing the client to assume that $200,000 is the end result, consider the engagement of an expert you know and trust to provide an independent valuation of the shareholding. Often this step is taken much later in the litigation, with the risk that the independent expert will come in with a lower valuation compared to the figure your client has been conditioned to expect. At this stage, you have been engaged for months or years in protracted and emotional litigation (for the client at least) and now have the task of explaining to your client why her expectation must be reduced significantly.
e. When to engage Counsel
The facts seem simple, the client does not wish to spend much money and is impatient to have proceedings commenced immediately. A decision needs to be made by you as the controller of the litigation as to whether Counsel should be engaged.
In the event that you feel that the issues are not sufficiently clear for you to proceed or, the estimated quantum is enough to warrant a closer examination, seek instructions to obtain an advice from counsel.
In several cases, it is worth advising your client to spend the money initially to have counsel draft the statement of claim. This could simplify the issues in the pleading and the manner in how it is pleaded, saving a great deal of time and expense in dealing with interlocutory applications over matters to do with the pleading and the provision of particulars.
2. Litigation Has Commenced – Now What?
One need look no further than the ANZAC landing at Gallipolli to understand how the best laid plans can come unstuck, with horrendous consequences:
"The generals thought they could do the job in three days. Land on the Gallipoli peninsula, clear it of Turks and disable the seaward defences. With a bit of luck it could all be accomplished in 72 hours…… For 259 days, from April 1915 to January 1916, the allied forces hung on to their toeholds on Gallipoli. A total of about 500,000 men were landed there over the course of the campaign and almost 300,000 of them became casualties."4
Once the litigation has commenced, there is a certain rhythm to the way in which it is conducted. The best strategy to employ is to ensure that you are the one that is controlling the litigation as much as you are able to. Always be in a position to understand when things occur to alter the rhythm, so that you can react and adapt appropriately.
That motherhood statement aside, there are a number of specific matters which, while seemingly commonsense, require reinforcement in the way in which you conduct a piece of litigation.
a. The Interlocutory Timetable
The way in which the litigation is conducted varies depending on the jurisdiction of the dispute.
The Magistrates’ Court has rules5 which provide a framework for the timing of interlocutory steps such as provision of particulars, discovery, joinder and interrogatories. At all times a practitioner should be familiar with the time limits placed, so as to avoid unnecessary applications to the Court for the purposes of seeking leave to take steps when you are out of time to do so.
In the County Court, proceedings are provided with a directions hearing which gives the parties to the litigation the opportunity to enter into a timetable with respect to interlocutory matters.6 The date for the directions hearing is generally 6 months from the time in which a Notice of Appearance is filed by the Defendant to a proceeding.7 That 6 months is often "dead time" when no steps are taken in the litigation.
Assuming that you are confident in your abilities to conduct the litigation as expeditiously as possible (so as to get to a position to either settle the litigation or proceed to an early trial), a proposed timetable should be drafted and forwarded to your opponent at the earliest possible time. By entering into consent orders with respect to a timetable, the overall length of the litigation can be shortened by at least 6 months. This is a practice that the County Court encourages.8
Careful note should be taken of Order 34A.17 of the County Court Rules of Civil Procedure, which provides:
"Unless the Court otherwise orders a party shall not-
(a) be required to make discovery of documents; or
(b) serve written interrogatories."
Almost every commercial litigation that is conducted will require some form of discovery. Be sure to include in the consent orders a schedule of documents which you seek the other side to discover. The Judge in charge of the directions list has to review the schedule and approve it before an order with regard to discovery will be made.
The Supreme Court has for many years operated under a case management system which will provide a directions hearing and a suggested timetable to the parties for the purposes of their consent9.
In any jurisdiction, care should be taken to make reasonable estimates of the time that should be taken to complete interlocutory steps (reference can be made to the time prescribed by the various Rules of Court as a guideline).
It is of great importance to being in control of a piece of litigation to set the timetable and then ensure that those steps are completed by you within the time provided. To not do so exposes your client (and you) to applications arising out of the default adverse, costs orders and can easily result in a feeling that the case is slipping away from your control.
Hopefully, assuming the steps mentioned in the pre litigation stage above have been handled, issues such as particulars, discovery and interrogatories should be easily dealt with.
Of all the interlocutory steps, perhaps discovery is the one which has the greatest potential to transform a simple piece of litigation into the runaway train. Be sure to advise your client at the earliest possible stage of the requirements of discovery10 and the types of documents which the client will or should have which would be discoverable. It is an unfortunate case when a client produces a document on the morning of a trial, which is of relevance to the case, and which necessitates an adjournment of the trial, with a costs order made against the client, who properly advised, would have produced the document much earlier.
It is also important to ask your client about the types of documents which the opposing side will have in their possession, custody or power so that you are in an informed position to analyse the sufficiency of the opposing affidavit of documents.
The size and volume of the discoverable documents are issues which require careful attention. The Supreme Court of Victoria has issued a Practice Note concerning Guidelines for the Use of Technology in Litigation in Any Civil Matter11 which provides that electronic exchange of discovery lists, data and images should be considered in any case where the total of discovered documents (Plaintiff and Defendant) exceeds 500 documents12. Importantly the decision regarding electronic discovery and any protocol to be applied should be made before discovery.
Particular reference should be made to paragraph 14 of the Practice Note:
14. "At any directions hearing at which the use of technology has been raised the court expects the parties:
(a) to have ascertained the number and categories of documents likely to be discoverable by that party, taking into account any limits on discovery that may be agreed between the parties or the subject of a direction by the Court;
(b) to have attempted to agree with the other parties on how to use technology to exchange discovery lists, data and/or images;
(c) to be able to make informed submissions about how technology should be used to exchange discovery lists, data and/or images" 13
In order to be in a position to make sensible submissions regarding the use of technology in a litigious matter, as a practitioner the fundamentals of ascertaining the size of the discovery, subject to any direction of the Court, is a fundamental precursor.
Obviously the commerciality of electronic discovery, and the subsequent use of technology at the trial of a proceeding, needs be carefully considered when advising a client whether it is appropriate. The cost of discovery may be a lot higher initially, however, significant savings are possible, in terms of shortening the length of the trial as well as reducing what can become a vast expense of photocopying (for the requisite number of Court Books). For example, in the litigation involving the failed Estate Mortgage Trusts, discovery was performed electronically at a cost of $20,000 (for producing a CD Rom), which covered 1.7 million discoverable documents.14
It is all too easy to become bogged down in the various interlocutory steps described above without undertaking a strategic review of the initial advice given to the client and whether it need be altered.
One of the most appropriate times to take stock of the litigation is once discovery has been completed and the opposing parties’ documents inspected. By this stage, the pleadings ought be closed, which allows the lines of battle to be delineated. A through review of the documents which both sides will rely on (to make out the matters contained within their pleadings or which are injurious to their case) should serve the function of endorsing your initial advice. Importantly, it gives you the opportunity to alter your advice on the basis of new matters or documents which have come to light since the initial advice was given.
This analysis is critical to controlling the course in which the litigation takes. For example, the Defence may simply be one of non admission and denials. If, after all the discoverable documents have been inspected, you form the view that many of the matters which are not admitted in the Defence are matters which the evidence will prove, then the Notice to Admit procedure should be seriously considered.15 This can serve to narrow the issues in dispute between the parties, sometimes considerably, so that valuable time can be spent on the issues in dispute, instead of letting a multitude of issues remain in the realm of non admission.
Any time you review your advice care should be taken on the initial estimate of costs, compared to what has occurred. If the battle has degenerated into something resembling Fourth Generation Warfare, it is rare that your initial estimate would have allowed for the events that transpired. Explain to your client why the costs have increased from your estimate (if that is relevant) and give updated estimates of the various stages as you are conducting each battle. This will serve to give both you and your client some perspective as to the litigation, and the commerciality of the way in which it has been conducted.
Alternative Dispute Resolution has become an entrenched part of all litigious processes, with much success.16 The mediation process can be one of the best weapons available to a litigator to achieve the optimum outcome for the client.
In order for that weapon to be used effectively, the process must be taken seriously. It is always extremely disappointing to attend a mediation where the opposing party has not prepared themselves adequately to assess the risks and advise their clients of this, which is a critical part of working towards an out of court settlement .
The preparation for mediation should include the completion of discovery, subsequent review of the client’s position and the updating of the advice to the client.
Speak to key witnesses before the mediation, if not for the purpose of proofing them and drafting witness statements, at least so as to be in a better position to assess the strengths and weaknesses of your client’s case.
In the event that you are conducting the mediation on behalf of your client without counsel, draft a position paper, which summarises:
- The issues in dispute (as contained by the pleadings);
- The evidence which supports your client’s allegations on contested issues;
- A critique of the allegations made by the opposing party; and
- An analysis of what you estimate your client’s case is worth to the point of mediation (calculate the claim, costs and interest).
The position paper, even if not a mandatory part of the mediation process, serves as a method by which you focus your energy on the real issues in dispute, which can be difficult to identify when in a complex claim. It is also invaluable to focus the attention of your client, who will often be prone at this time to see the emotional aspects of the dispute, which ultimately acts as a deterrent to the ability to settle the matter at the mediation.
Have prepared for your client a calculation of the solicitor client costs that have been incurred to date, compared to an estimate of how much would be recoverable on a party-party basis.
Another tool which assists to focus the mind of your client, when there has been a simple claim that has blown out into a complex one, is to explain to your client the various outcomes that can be achieved at a final trial. For example:
1. The quantum of the claim is $100,000. The best result for your client is $100,000 plus interest (quantify this into a $ amount) plus a portion of the solicitor client costs (50-60% is a reasonable guide) = $X 11
2. In the event that the claim is dismissed, then the result for your client is $0 on the claim, an adverse costs order (estimate a $ amount) plus the solicitor client costs already paid by the client to you for conducting the litigation.
It is surprising how often this makes the client realise that the reasons for continuing what has become a messy, complex litigation have become removed from what the client sought when the proceedings commenced - $100,000 in the example. This exercise can assist in procuring a settlement which would provide a better result that what could be expected in running the case to trial (and by removing the risk of an adverse result).
Strategic Offers of Compromise
Mediation does not resolve all litigation.
As soon as the mediation has proved unsuccessful, and assuming that the parties are so far apart that further negotiation is unlikely to produce a settled outcome, then the astute litigant needs to once again focus on the steps leading up to the final battle.
Strategically, this is a time to review your advice that has been given to the client. Often things will be revealed at a mediation which may cause your assessment of risk regarding liability, or your quantum estimate, to change.
Such changes should be explained to the client at the earliest possible stage.
It is useful to consider recommending to your client a Strategic Offer of Compromise.17 It is now possible for both Plaintiffs and Defendants to serve on the other an Offer of Compromise18.
Careful consideration need be given to the circumstances of the case, as well as the result that is expected, so as to advise your client on the quantum of any Offer made. For example, as a Defendant, if you know that the Plaintiff will not accept an offer below a certain level, which is higher than your estimate of the damages the Plaintiff would receive if successful, consider increasing the quantum of your offer to give your client the maximum protection that it affords. Similarly, as a Plaintiff, if the parties are entrenched and no offer will be accepted, serving an Offer of Compromise in a sum lower than what your expected outcome is could make the difference in a judge exercising the discretion to award solicitor client costs in your client’s favour; that is it is simpler to demonstrate to a Court that your client has made a more than genuine attempt to resolve the litigation.
This exercise (second guessing your opponent) should not be undertaken unless you have a solid grounding in the battle to date, and can predict with reasonable sureness how the offer will be received. Your client should always be made aware that there is the risk that a "cute" offer will be accepted by the opposing side.
Pre Trial Preparation
As this is the topic of separate presentations at the seminar, it is not proposed to go through the elements of pre trial preparation in any great detail. The following checklist is a convenient one to consider, especially when the battle is raging all around you:
1. What are the key issues that remain in dispute?
2. Do you have all the documents that are needed to prove your client’s case? If not, consider what type of subpoena is required – if you want to review documents prior to trial, then a Order 42.10 subpoena is appropriate.19
3. What witnesses do you need to call? Have they all been interviewed and an assessment made as to the probity of the evidence, compared with the risks of adverse evidence coming out in cross examination?
4. Make sure counsel is briefed at the earliest possible time. Follow up counsel once they have been briefed for trial, and organise a conference well before the trial, so any matters which counsel raises can be dealt with adequately in preparation.
5. If you have expert witnesses, make sure that Order 44 has been complied with.
6. Settle the Court Book Index with your opponent. Once the Court Book has been compiled, forward a copy to counsel straight away, as the Court Book is what most counsel will use to conduct trial preparation.
7. Update your client with the estimated duration of the trial and the costs needed to run it. Prepare your client to be flexible, as the complexity of trial preparation can often pale in comparison with the heat of battle in the Courtroom.
The open warfare that is Commercial Litigation can be controlled by the practitioner who has the battle experience necessary to impart a cool head onto a client, and a strategic manoeuvre on an opponent.
Certain disciplines should be adhered to, which will result in better outcomes and a more efficient practice overall; remember you will have many files that will require your attention at any one time in your practice!
By reinforcing the methods by which an efficient operator practices commercial litigation, the runaway train can be halted or indeed its path moulded. The overriding principles of thorough preparation, before litigation has commenced, together with a preparedness to continually review and advise will help to put you, and your client at an advantage over the opposing party.
The words of one of histories greatest military writers, Sun Tzu, are an appropriate way of concluding a paper on dealing with large matters, that didn’t start out that way:
"To be near the goal while the enemy is still far from it, to wait at ease while the enemy is toiling and struggling, to be well-fed while the enemy is famished:--this is the art of husbanding one's strength."20
1 As defined in http://www.free-definition.com/War : "Second generation warfare was developed in response to the rifled musket, breechloaders, barbed wire, the machinegun, and indirect fire. Tactics were based on fire and movement but they remained essentially linear, with defenses still attempting to prevent all penetrations and attacks laterally dispersed along a line advanced by rushes in small groups."
3. See s.232, 233 and 461 of The Corporations Act 2001
5 Magistrates' Court Civil Procedure Rules 1999, reproduced at Austlii:http://www.austlii.edu.au/au/legis/vic/consol_reg/mccpr1999409/
6 See generally the County Court Consolidated Practice Note dated 9 April 2001, and Pro Forma Orders for Directions in the Damages List and Business List, as approved by Her Honour Judge Harbison as at June 2001, reproduced athttp://www.countycourt.vic.gov.au
7 Except for Corporations Act matters, for which a directions hearing is generally given3 months after the date upon which the Originating Process is filed: see County Court Consolidated Practice Note 9 April 2001 as amended 20 November 2002, at p. 20.
9 Practice Note 1 of 1996, "Civil Case Management".
10 For commentary on a litigants’ obligations with respect to discovery, refer to Williams, Civil Procedure Victoria, Volume 1, Butterworths, p.3751-3758.
11 Current Practice Note 3 of 2002, available athttp://www.supremecourt.vic.gov.au
12 Ibid, para 10.
14 For a discussion on the applications of technology See: ‘Technology Plays a Big Part in Estate Mortgage Case’
15 Order 35 of the Supreme Court Rules of Civil Procedure, Chapter I, provides the genesis for the Notice to Admit Facts and Documents. See Order 35.03(1) "A Party may serve on another party a notice stating that unless that party, within a time to be specified in the notice (which shall not be less than 14 days after service), disputes the facts specified in the Notice, he shall, for the purposes of the proceeding only, be taken to admit those facts.". Order 35.05 contains a similar rule in relation to admitting the authenticity of documents.
16 See for example 2002-2003 VCAT Annual Report – Mediation, available at http://www.vcat.vic.gov.au.
17 See Order 26 of the Supreme Court Rules; at 26.02 "The plaintiff and the defendant may in respect of any claim in a proceeding serve on one another an offer of compromise on the terms specified in the offer."
18 Compare with the situation prior to the 1996 amendments to the rules when the former 26.02 provided that the only proceedings in which a Plaintiff could serve an Offer of Compromise was in a claim arising out of death or bodily injury.
19 Order 42.10 operates in the Supreme Court and County Courts so as to compel the subpoenaed person to produce the documents the subject of the subpoena to the Prothonotary/Registrar on a date before the trial and allows for inspection and copies to be made.
20 Sun Tzu, ‘The Art of War’.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.