Nothing can be more profound and exhausting as going to court, whether you are defendant, or plaintiff…………. Its hell…… But having had a recent court case and along the way learned a couple of things that I didn’t know when we started, I feel a bit more educated about it now.
So here a couple of Do’s and Don’ts that if I were starting again, I would change…….
If your the plaintiff, the onus is on you to prove your case. In a civil case in most parts of the world you are required to prove past the threshold of 51%. This figure is a really nonsensical assessment because there are degrees (after 51%) that the judge will take into consideration.
#1: Don’t go to see a lawyer with a view to going to court unless you really mean to do it.
A bit of self help at the start is a really good thing after you have cooled down and can be a good starting point as to an outcome long before you step through that leaches door!
Firstly you have been wronged…. or have you? Be critical of yourself. Write down and number all the points for bringing a case (all the facts) and then write down all the points against, no matter how remote. If your for list does not exceed your against list significantly……… do not go to court.
The premise of this is that your opposing counsel will drag every single point that you ever made, and turn you into a money grabbing demon that would probably rape Mother Theresa if he takes his eyes off you!
#2: Don’t bring a frivolous case to a court.
The judge gets upset with you, and, seeing she has direct access to your wallet and can rape it if you look the wrong way at her….. make sure you have not only a good legal case, but a good moral one too.
Because you hate the other guy with a passion is no reason to bring a case, unless you have a very big fat check book. Make the case easy for the judge, and you will have rewards.
#3: Don’t tell your lawyer everything!
I had very honest lawyer, a good family man, does not beat the wife, goes to church, and does everything by the book!….and consequently will act on every single thing you tell him adhering strictly to the law. The problem here being… he is an exception rather than the rule…… the others do not play fair. Tell him what is relevant.
#4 Do you have a case?
Can you actually prove what you say. As a plaintiff, its up to you. If you have ‘He said, I said’ you will most likely lose. True you may be able to come up with 51% but that will only give you your costs back (possibly) What do you have written down? do you have a contract? Do you have a witness to the contract? In short Now Prove It.
#5 What is a contract?
If you Google this you will find that a contract is simply a promise to do something get something or give something for another something. The promise can be in many forms, it does not have to be written.
- Offer and acceptance
- Posting rule
- Mirror image rule
- Invitation to treat
- Firm offer
The elements of a contract are “offer” and “acceptance” by “competent persons” having legal capacity who exchange “consideration” to create “mutuality of obligation.”
Once you really get into this there are lots of conditions to what may or what may not be a contract, but we are not gonna get into absolutes of each case, the fundamentals are Offer and Acceptance, but when standing alone cannot form a contract. Remember a judge has to decide on what you can prove, and he has no way of making a decision on what you or the defendant thought you meant (in which case you lose)
So I have bought a car, I offered $1000 and the defendant accepted $1000 dollars. Is this a contract? no way! not to a judge anyway! For instance if you give him the keys, because he says he will bring the cash around, you are totally screwed, and he has your car, because you did not define when!
So now he pays up you have not had your money for 6 months, and lost all interest so you take him to court ….. and you will get NADA! Why ? because you did not say there is a penalty at the start!
#6 Do I need a lawyer to write the contract?
No you dont, unless its a complicated case, particularly involving several parties to both sides, in which case you need to be absolute about who is doing what! Just make sure you have. (But because you are thinking litigation, I guess you have already passed that point!)
Offer I have a thousand tons of sand…….. I will sell for X per ton
Acceptance: I will buy a thousand tons of sand…… at X per ton
Offer/Payment: You will pay today/ next week/ next year/ never.
Acceptance/Payment: I will pay today/ next week/ next year/ never.
Offer/When: I will deliver on this date.
Acceptance/when: I will receive on this date.
Conditions: if you do or if I don’t
Lawyers are instinctively leaches, its born and bred into them, (in fact we should really have a legal cull of lawyers twice every year). They write laws for which they are paid a great deal of money, and then even more money to decipher those same laws….. you need to employ them them to clarify what they meant, or do you?
#7 Now consult a lawyer.
You need do nothing more than send a demand for payment, and, give a time you will take action if you do not get satisfaction. All the other stuff a lawyer wants to discuss do not even bother!
Just make sure your demand is for the exact sum you can prove, and are claiming……EXACTLY! Your in and out in about 15 mins…….. You can actually do this bit yourself, but some people take this as being more serious when it comes from a leach!
#8 Start proceedings:
OK you have done your list…. keep it and update as you get evidence together. Every single email, every scrap of paper, every diary, every phone log, every conversation you can remember with dates, times, and places. Then copy the lot and file. Originals 1, and two copies of copies. One for him, and one for you. Do not miss out anything! It is really hard to add in later because you forgot!
Do your calculations and make sure they add up, then do them again, then give to someone to calculate. Itemize every calculation, dates times and places. Then give it to someone who you trust and would give you an honest feedback. NOT YOUR LAWYER…. I said honest feedback.
Do your list again. If you have a case, chances are it has grown to more positives. if it has grown to more negatives…… re-examine your position.
Filing your claim:
Write down all the facts, everything thats relevant, in particular, the absolutes, log them and give to lawyer for putting into gobbledygook nonsense language for other lawyers who speak gobbledygook nonsense language. Put all your evidence (copies) with this summary and get your lawyer to file…… you are still not interested in talking about the case……… why? because it does not really matter…. yet!
The issue has not come to the trial yet, and as long as you have included the important details of the transaction , and what you are claiming, there is little need to put any more down…. wait for them to respond!
Proving the facts dont really matter yet as you and the other guy know what you meant, so its negotiation stage to lawyers, (they dont expect it to go to court) only…. try to resolve it, with a different aspect by looking through your lawyers eyes.
Look at courts as a examination, and one you want to pass, which you can only do if your honest to yourself in your claim, and can actually prove that claim.