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Litigation pitfalls

Updated: Feb 26, 2019


Some issues are only resolved by following a formal court process, called litigation.


Litigation is when one party sues another party (action procedure) or applies to a court for some relief against another party (application procedure).


For an explanation on the difference between actions and procedures, read the following article here.


Any legal or court process has pitfalls and clients should be informed of such pitfalls before any procedure is commenced with.


Client's should always make informed decisions before embarking on any legal process. The best way to deal with the pitfalls is to ensure that you properly consult with your attorney and ask about the possible pitfalls of your case.


It is always better to know the worst case scenario in advance.


Common pitfalls in legal action are:


The high cost of litigation

A standard, uncomplicated, run-of-the-mill legal action that proceeds to trial can cost anything from R100 000.00 to R500 000.00.


Legal fees accumulate over time, so although the full amount of the process is not payable in advance, it is important to know that once you start spending money on legal fees, turning back is not always an option. When you decide in the middle of an action that you don't want to proceed due to the high cost of litigation, you will also be liable for the other party's legal fees when you withdraw the action.


Time-consuming

A typical legal action takes anything from a couple of months to years to finalise.


Various processes must be followed and unfortunately, the rules of the Court allow for delays, postponements, etc.


Instituting legal action when you urgently need the money or other relief, might not be a viable option and client's sometimes get frustrated when results are not seen as quickly as they want.


Witnesses and evidence

We all conclude "gentlemen's agreements" from time to time, but such agreements are difficult to enforce and prove in a court.


Attorneys rely on people and hard evidence to prove a case, and when such witnesses or evidence is not available or questionable, it has a direct influence on the chances of success of the case.


An attorney can believe his client with his whole heart, but without the necessary evidence to prove the case before a Judge, litigation can become a risky and costly exercise.


Human error

We are not yet at a stage where facts are inputted into computer software and an accurately calculated result is produced.


Legal processes are conducted solely by human input and humans make mistakes, from the client to the witnesses, to the attorney and even the Judge.


One error can impact the ultimate success of a case and therefore the success of a case can never be guaranteed. Attorneys have insurance to cover their errors and Judges' incorrect decisions can be appealed against, but if the client or one of the witnesses errs on an important aspect of the case or the evidence to be presented, there is very little one can do to fix the mistake.


Conclusion

We always explain litigation risks to clients as follows: You go for a standard medical procedure, for example, to have your tonsils removed by a doctor with years of experience. This procedure involves the administration of anaesthesia in a theatre. Even the most basic and standard medical procedure has inherent risks.


In the same manner, litigation also has its inherent risks and clients should consider and accept the risks before embarking on any legal proceedings.


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