To Trial? Or Not To Trial?

To Trial? Or Not To Trial?

Although we always endeavour to settle claims on very good terms, primarily to avoid the expense of litigation for our clients, unfortunately if the opposition has an obstinate attitude, there is no option other than to take the matter to trial.

In one case the other side was being particularly difficult, blocking every attempt to settle. This resulted in interim applications having to be made to the Supreme Court on four occasions.

A mediation was finally agreed to, and thankfully they briefed an experienced and respected barrister to appear. To our absolute surprise the matter settled on favourable terms, with the expense of a final trial being avoided.

In another matter, we commenced proceedings in the District Court on behalf of the plaintiff, and again, due to a difficult defendant there was no other option than to proceed to trial. During our barrister’s cross-examination of the defendant’s expert witness, (a safety engineer), the witness’ honest and factually correct evidence actually ended up favouring our client.

The other side quickly realised that a change of attitude was needed, and during the lunch break, quite of the blue, they made a reasonable offer which our client accepted.

The point is, that sometimes evidence at trial can turn a pre-forecast outcome around, so if an offer is made within the range of damages expected, it is often best to settle. There is always a risk with proceeding to trial. Not only are additional costs involved, but neither party can be sure what the exact result will be until the court’s judgment is in.

On the flip side, if each side is prepared to co-operate and negotiate fairly, the result is a good outcome for both sides. In a recent matter both our team and that of our opponent, were complimented by the Judge.  He particularly congratulated each side on their “professional approach,” and went on to say, “it is pleasing to see experienced barristers who know what they are doing, and I congratulate you both on your appearances here today.”

We only brief experienced barristers who take a professional and courteous approach. When the other side does the same, the result is equitable and fair, particularly for our client.

Some clients ask us, “what’s going to happen if I lose?”  Our answer is that we will not start the action unless we feel confident about the prospects of success, making it clear that there is never any guarantee of success. Having said that, we certainly can give our clients a good indication of their prospects of success.

While we certainly don’t wish to brag, our firm is proud of its successful litigation history, having very rarely lost. We have assisted clients since 1975, when the practice was founded by Keith Hunter. That wealth of experience is shared by our litigation paralegal, Melanie Dennis, who has been with us for twenty-one years.

Tags: Trial, Litigation, Mediation, Court

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