Litigation – the Practicalities of Going to Court? Part I

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What’s it like going to court? What does it entail? Should you sue? Should you retaliate when sued? Or should you just settle? And if so, at what point in the process do you show this hand? Who do you appoint?

 

I’m finding that churning out a steady stream of articles and the amount of legal work I do is inversely related. It’s been a productive few months advising on several challenging court cases for clients, hence my radio silence.

 

Attending court is a given for lawyers. Even for those of us involved in solicitor type work such as boardroom negotiations and drafting agreements, chances are non-contentious matters such as probate, letters of administration applications or joint divorce petitions, to name a few, still bring us to court.

 

In recent months, I’ve been engaged with work of the contentious kind: that is, litigation or court work. Such work revealed some unexpected issues. In one situation, when a client approached us, he was so absorbed with retribution that, come what may, he had made up his mind to litigate. We wondered if he had fully appreciated what he was getting into. Did the litigation make commercial sense for him?

 

In another matter, we experienced the opposite end of the spectrum with a client who was so overwhelmed with the process that he wanted to settle as soon as possible. The circumstances were exacerbated by the plaintiff’s aggressive stance. In such cases, we had hoped that our client’s frayed nerves might be calmed and clarity of direction restored with some guidance and “hand holding.” We had to consider whether he had the luxury of this option, and if a settlement would fall short of what he deserved. We were also aware that plaintiffs can sometimes be over-confident because their claims have not been tested by the defendant’s questions. We knew such over-confidence can quickly dissipate when reasonable doubts are raised from thorough research by a solid defence team.

 

My clients are smart, successful and have life experience, so their inability (or oblique refusal) to understand concepts us lawyers consider straightforward (despite repeated explanation), piqued my curiosity. It would appear that the process of litigation or going to court would not be as straight forward as I had thought. Because of this, it was timely to contribute this piece which I hope would break the process down into the various stages and offer some clarity to the layperson if he has to go to court.

 

What’s it like going to court? What does it entail? Should you sue? Should you retaliate when sued? Or should you just settle? And if so, at what point in the process do you show this hand? Who do you appoint?

 

As you will note, this article on litigation is meant for the layperson. And by that I don’t mean someone from the corporate world or a seasoned businessman. I’m talking about those who have never dreamt of suing anyone or who have never in their wildest dreams thought they would be a defendant in a suit. This would include, for instance, a housewife who may be facing matrimonial issues such as divorce or a custody contest of children, property investors who end up purchasing a property with a fake title, a group of engineers who have built a successful OEM company who are facing a claim from their customer for the first time, or an executor of an estate being sued by the potential beneficiaries of an estate. We always think it can never happen to us but sometimes it does and for the first-timer it may be a harrowing experience, to say the least.

 

1) What’s going to court like? What does it entail? Should you sue? Should you retaliate if sued? Or should you settle?

In the heat of the moment, people often threaten to sue especially after an altercation. But once the process has been initiated, do they have the ability to see things through? The following are the different traits needed to see the process through:

  • Emotional fortitude — litigation can be stressful;
  • Long attention span and the ability to commit to some hard work. Unlike dramatic TV court scenes where the “villain” is cross examined by an equally dramatic lawyer, in life, no one person is the villain; there are just two parties with different view-points. And these differing view-points have to be backed up with facts. Allegations have to be supported by facts and can be considered defamatory if not, but this is another legal topic for another time. And the best person to furnish the lawyers with the facts is the client. As they say, the devil is in the details: even if litigants are willing to pay for the best lawyers, factual and investigative work have to be carried out by the clients to furnish their lawyers with the raw materials to build the case); or
  • Financial capacity — costs awarded to the successful party usually don’t cover the legal fees incurred.

 

When people hear about litigation, dramatic TV court proceedings come to mind. Contrary to the TV courtroom depictions, sometimes the battle is won or lost at the outset; even prior to any court proceedings. If I may quote Abraham Lincoln, “To cut down a tree in 5 minutes, spend 3 minutes sharpening your axe. Give me 6 hours to chop down a tree and I will spend the first four sharpening the axe.” Therefore, doing your homework is paramount.

 

Granted a smart and quick lawyer who is able to think on his feet in court is imperative. But as mentioned earlier, most cases are actually won or lost many months before any court appearance, through research of the law, uncovering the facts, and anticipating the arguments of the opposite side. This is where the relevant factual information has to be furnished to the legal team by the client. Hence, litigation wins or losses revolve a lot around the facts. Do you have the time, interest and the aptitude to investigate and furnish the facts to the lawyers?

 

And before we get into the nitty gritty of the case with the lawyers, have you appointed the right team for the job? Getting this formula right from the outset is crucial. Taking time to research the appropriate lawyer to work with you could be pivotal to winning your case. This brings us to the next point:

Part II: Read more about this next week!

2) So who do you appoint? How do you choose a lawyer? Do you pick the firm or do you pick the lawyer?

Official MM2H Workshop (Looking Forward to Updates!)

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On 20th March 2018, it was publicly announced for the first time at the British Council event (where I presented my Wills Seminar to British expats) held at E&O Hotel, Penang that new MM2H guidelines would come into effect mid-2018. This announcement resulted in more questions than answers and the expat community in Malaysia were understandably concerned. On our part, we wrote to the Immigration Department for clarifications and our proposed suggestions (in a nutshell for existing MM2H holders as well as applicants who had submitted their applications to be “grandfathered”).

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Important MM2H Updates! Popular FAQs Answered!

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MALAYSIA MY SECOND HOME (MM2H): FREQUENTLY ASKED QUESTIONS, MAY 2018

It’s been months since I published our last MM2H FAQ. Since then, I’ve had an overwhelming number of questions from those of you seeking clarification as you consider making Malaysia your new home. As there have been many questions, I’m going to list the most common ones in our latest MM2H FAQ sheet, which I hope will help to ease the process for you!

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Estate Planning for SMEs at Vistage

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As someone who likes his advice to be user friendly, there’s nothing like getting direct feedback from the business community. Specifically, in terms of the laws of succession and estate planning, what type of guidance they need. I recently received an invite from Vistage, a peer advisory grouping of CEOs and business owners, to chat to them about Estate Planning for family owned SMEs. Of course, I accepted without hesitation.

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Big Band Jazz in Penang on Sept 27th,2017

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Jazz has always struck a chord with me. Men and women dressed to the nines in their elegant frocks and black ties, all for the occasion and what an occasion it was! The Big Band Jazz concert exhibited the best of jazz from a bygone era of art deco and sophistication; the Great Gatsby, Ellington, Count Bassie. It’s the very best of music, fused with sartorial elegance.

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