What I did not expect about litigation.

*This is an opinion piece. It is not legal advice.*

I was involved in a personal civil lawsuit for over ten years. Thankfully, that is over! I am constantly reflecting on the lessons learned. This article is for such individuals who are contemplating starting a civil or family lawsuit. I wish someone had told me this when I was a new litigant!

Limitations of the Civil Litigation Process

I began quite naively believing that a litigant in the right will surely be recognized as such when it comes to a trial. “The truth will come out and justice will prevail” I kept reassuring myself. 

At a fundamental level though, the truth can only be revealed to the extent the evidence is available. One of the biggest challenges litigants have is to convince a judge that their version of the facts is true, and their memory is accurate. I wonder if other litigants feel the same: you distinctly remember how events of the dispute unfolded. The memory is seared into your brain. (A lawsuit has that effect on litigants: you cannot help but live through the events, over and over again. You want to tell the trial judge what happened. You hold onto every detail because you don’t want to forget any of it for the trial, especially when your lawyer told you that you have to tell your story on the stand without written notes!) Some litigants are lucky if they caught the events in a video or if they have documentary evidence. If not, you just have to hope they will believe you. Credibility is a common issue in civil cases, which are judged on a “balance of probabilities”. The judge has to decide whether it is more likely or not what you say is true. Fact finding in a trial is not a scientific endeavour. Even if you are successful in convincing that every fact they testify is true, it is rare that every judge will interpret the facts only in the way the litigant views them.

The interpretation of the law can also be different depending on the judge. There is often more than one correct way of interpreting the law. At trial court, if you are lucky enough to have a judge who happens to take your side, you win. At the appeal courts, it is often the case that two judges agree on one interpretation, with a third judge disagreeing (hence offering a “dissenting opinion”.)  If your case goes to appeal, you may thus “win” depending on whether you are lucky enough to have a majority agrees on an interpretation favourable to you.  Whether you win therefore, is not so much you are in the absolute “right”, but that you were lucky enough to have a majority interpret the arguments in your favour.

Multiple steps before the trial

A lawsuit does not simply involve giving notice to the court and to the other side what you are suing them for, and then having a judge hear your case at trial. There are many steps in the interim. In civil litigation, for amounts in dispute that are over $35,000* (i.e. disputes not in Small Claims court) in dispute, there are discoveries, interlocutory motions, pre-trial conferences, each of which can occur multiple times, (mandatory mediation in some jurisdictions) depending on the complexity of the case. In family litigation, there are similar procedures, such as financial disclosure, case conferences, motions.  Each step can potentially cost thousands of dollars of legal fees to a party. In addition, motion decisions can also be appealed or set aside. So what started off as one dispute (e.g. suing someone for defamation) can balloon out to disputes about the procedure (e.g. a motion to compel opponent to provide documents can be fought up the court hierarchy.)

How Common Law works (not Common Sense!)

On top of these steps, the adversarial process does not simply mean each side gets to tell their version of the facts. Our common law system based on the concept of precedent. While the principle is easy to understand, in that our legal system demands like cases be adjudicated alike, in practice, formulating legal arguments require a great deal of skill and knowledge. The parties are expected to know the law that is relevant to their case, and argue how the law applies in such a way so that they can convince the judge to grant them the relief they are seeking.  Facts are “proven” to the judge, as described above. The law is argued using legislation and case law.  In addition, evidence at trial can often be blocked from being presented by your opponent, if they violate rules of evidence. This can sometimes weaken your case substantially if the evidence is crucial. Lay people are not educated on the many rules of evidence, nor are they usually equipped with understanding how to research the case law that interprets these rules. 

We have an amazing legal system, one that has evolved throughout the centuries, and still continuing to evolve. In our society, we value individual freedom and rights. Therefore, when a judge makes an order to compel someone to do something, such a decision should not be made lightly. The many steps in the court procedure are there for a reason: to ensure a fair process. Nevertheless, if I had known what real life litigation involves, I would have tried harder to settle, and consider mediation or arbitration.