Civil litigation is the action, process or practice of settling a dispute in a court of law. Not all lawyers practice in the area of civil litigation. Further, there are many different areas of law within the scope of civil litigation. For example, your dispute could be over a breach of contract, personal injury, constructive dismissal, or anything for that matter. If you proceed to court by starting or responding to a lawsuit, then you need a civil litigator to represent you. Some lawyers specialize in only one area of civil litigation, such as a lawyer who only practices personal injury litigation. Other lawyers may practice in employment litigation or intellectual property litigation. There are no restrictions on how many areas of law a lawyer practices civil litigation unless he or she has been restricted to practice in a certain area of law for some reason. There are also lawyers who practice in all or most areas of civil litigation. All of these lawyers are civil litigators. They go to court.
Litigation can be a long process. It can take as much as five years or more for a case to get to trial. Some cases may get to trial faster, but it is almost never as fast as you want. There are certain tactics that a lawyer can use to try to move a case through the courts faster. Most cases settle before they get to trial because it takes so long to get to that stage. In addition, the trial can be expensive and poses risks if you lose.
Below are some of the main stages when you are involved in a lawsuit, whether you are the Plaintiff (the person or company that starts the lawsuit) or the Defendant:
The first step is hiring a lawyer. You should look for a lawyer who has time to understand what the facts and legal issues are and can give you an early opinion as to the strengths and weaknesses of your case. If you go to a large law firm, they may assign numerous staff to your file, such as a senior lawyer(s), a junior lawyer(s), articling students and law clerks. You have to pay for all of these people to work on your file. That can get expensive. If a junior lawyer takes two or three times as long to perform a task than a senior lawyer would take, you are probably not saving any legal fees by having a junior lawyer do the task, which they may lead you to believe.
You should hire a lawyer that you have confidence in after speaking with them. The lawyer should return your calls and emails promptly, give you clear legal advice, and guide you through the various steps of litigation so that you know what to expect, and how much each stage may cost.
Once you hire a lawyer, then they need to gather the facts and relevant documents from you so that they can prepare a Statement of Claim (which starts a lawsuit) or a Statement of Defence. You should see drafts of these documents before they get filed in court so that you can make corrections and approve what the lawyer is filing. It costs $243 for your lawyer to issue a Statement of Claim and $194 to file a Statement of Defence (as of 2024). The Statement of Claim has to be served on the other side. Usually, this is done by a process server.
The next stage is known as “Discoveries,” which is when your lawyer will prepare an Affidavit of Documents, which contains all of the relevant documents that you have in your possession so that they can be listed in chronological order. You will sign an Affidavit of Documents when it’s completed, and then the lawyer will send it to the other side. The other side needs to do the same. Sometimes Affidavits of Documents can include hundreds of documents or more, depending on the kind of case it is and the number of relevant documents. Relevant documents may include draft and signed contracts, emails between the parties before litigation, pictures, invoices, corporate records, financial statements, etc. The type of case and issues involved dictate what kinds of documents need to be produced.
After Affidavits of Documents are exchanged, then the lawyers will conduct Examinations for Discovery, which involves questioning under oath. These can be done in person or by video. The examinations will be recorded so that a transcript can be made of everything that was said in case there is a dispute between the lawyers later on. The person being examined will have to give an “oath” to tell the truth. Your lawyer gets to question the other party, and the other lawyer gets to question you. In cases where the damages claimed are over $200,000.00, then each side is allowed to examine the other side for up to 7 hours. For cases where the damages are less than $200,000.00, then there is a 2-hour limit per side. Your lawyer should prepare you before you are examined by reviewing documents and giving you an idea as to what types of questions may be asked.
At the examination, you may be asked to produce further documents by the other lawyer. If your lawyer thinks it is a relevant request, then your lawyer will undertake to obtain the document and produce it to the other lawyer at a later date. If your lawyer thinks that the request is not relevant or privileged, then your lawyer may refuse to produce the requested document. There may be disputes between the lawyers at the Examination for Discovery. If necessary, then a motion can be brought to the court at a later date to compel the delivery of a document that was refused. In this sort of motion, the lawyers argue as to whether the request was relevant or not to the case.
Mediation is often the next stage after Examinations for Discovery. In some jurisdictions, like Toronto and Ottawa, there is Mandatory Mediation. Sometimes, cases settle at mediation; sometimes, they do not. It depends on whether the parties involved are motivated to settle or keep litigating. The mediator cannot force a settlement.
If the case does not settle at the mediation, then the next stage is setting the case down for trial. This involves filing a Trial Record with the court, which costs $859.00 as of 2024. Eventually, the court will send a list of available trial dates to the lawyers, and they will try to come to an agreement as to when everyone is available for the trial.
Before the trial, there will be a Pre-Trial Conference, which is often the first time that the parties are actually in front of a Judge. Many people involved in lawsuits do not realize that just because you have a court case, you may not actually meet a Judge for several years, which is at the Pre-Trial Conference. The Pre-Trial Conference is typically 1 hour long. The Judge will usually try to settle the case (if the parties are willing to settle), and if the case does not settle at that time, then the case will proceed to trial at a later date. The Pre-Trial Judge will not be the trial judge.
Only about 5% of cases actually go all the way to trial. All of the rest settle before. People always think that their case is going to be the one that goes to trial, but they are usually wrong. The reason most cases settle is because trial is expensive, time-consuming and risky. The lawyer has to do a lot of preparation before trial, such as: preparing Exhibit Books, legal research, preparing examination questions, preparing witnesses, and so on.
The Judge could give their decision at the end of the trial, but often they “reserve,” which means that they will review their notes and give you a written decision at a later date. Sometimes, that can take weeks or even months. The winning party usually gets awarded “legal fees” after the decision is rendered. This is like a double blow to the losing side since they not only incurred legal fees up to the end of the trial, but now they have to pay a portion of the winner’s legal fees. That can be devastating, so you and your lawyer have to give some serious thought as to what your chances of winning are before you decide to go to trial. It may be better to settle.
There are other steps that may be involved along the way, such as motions. Motions are procedural steps during the litigation when the parties have disagreements before the trial, or to freeze assets or preserve evidence pending trial.
In addition, some cases may be decided in an expedited manner by a Motion for Summary Judgment without having to go to trial. These types of motions can be brought where there is “no genuine issue for trial.” An example might be a lawsuit involving a loan that was not repaid. If the only issue is that the loan was not repaid, and there is no bona fide defence, then the Plaintiff could bring a Motion for Summary Judgment.