- Pleadings define the issues; discovery tests the evidence; most cases settle before trial.
- Documentary discovery is usually the most burdensome stage.
- Costs generally follow the event, so the losing party typically pays part of the winner’s fees.
- Summary judgment can resolve a case without trial where there is no genuine issue requiring one.
Pleadings
An action begins with a statement of claim setting out the material facts and the relief sought. The defendant serves a statement of defence, and may counterclaim or bring in third parties.
Pleadings state facts, not evidence and not argument. Their function is to define the issues, and a party is generally confined at trial to the case they pleaded.
Deadlines apply at each step. A defendant who does not defend in time can be noted in default and judgment obtained without a hearing on the merits.
Discovery
The stage that consumes most of the time and cost.
Documentary discovery requires each party to disclose all relevant documents in their possession, control or power, including harmful ones, in a sworn affidavit of documents. The obligation is broad and continuing, and in commercial cases the volume of electronic material is usually the driver of cost.
Examinations for discovery are out-of-court questioning under oath, transcribed. Their purposes are to learn the other side’s case, obtain admissions, and assess how a witness will perform. Undertakings given at discovery must be answered.
Discovery is also where most cases are effectively decided, because it is when both sides finally see the strength of the evidence rather than the assertions.
Motions
Interlocutory motions resolve procedural and substantive questions along the way, compelling answers, striking parts of a pleading, seeking security for costs, or obtaining an injunction.
Summary judgment is a motion to decide all or part of a case without trial, on the basis that there is no genuine issue requiring one. Courts have significant powers to weigh evidence on such motions, and it is a real route to disposition rather than a formality.
Motions carry their own costs consequences, and a party who brings unsuccessful motions accumulates exposure.
Mediation and pre-trial
Mediation is mandatory in some jurisdictions and common everywhere. It is confidential and without prejudice, and it resolves a substantial share of cases.
A pre-trial conference before a judge follows, to explore settlement and prepare for trial. The judge’s view of the case, expressed candidly, frequently moves positions.
The overwhelming majority of civil actions resolve before trial. Anyone starting litigation should understand that the process is oriented toward settlement, and that the trial is the exception.
Trial
Evidence is given orally, tested by cross-examination, and argued. Judgment may be delivered at the end or reserved.
Trials are expensive and slow to reach. Waiting times vary by region and have been lengthy.
Appeals are available but are not a rehearing. An appellate court reviews for error, and findings of fact attract significant deference, so the trial is generally the one real opportunity to establish the facts.
Costs
Costs generally follow the event: the unsuccessful party pays a portion of the successful party’s legal costs. Partial indemnity is the usual scale, typically recovering something in the region of half of actual fees, with higher scales available where conduct warrants.
Offers to settle have a significant effect. A party who beats their own formal offer at trial may obtain costs on a higher scale from the date of the offer, which is a powerful incentive to make realistic offers early.
The practical implication is that litigation risk is two-sided. A plaintiff who loses may face a substantial costs award in addition to their own fees, and that exposure should be assessed at the outset.
Common questions
How long does a civil action take?
It varies widely by complexity and region. Multi-year timelines to trial are common, which is one reason most cases settle.
Can I be forced to produce harmful documents?
Yes. The disclosure obligation covers relevant documents regardless of whether they help. Privileged documents are listed but need not be produced.
What is a without prejudice offer?
A settlement communication that generally cannot be put before the court on the merits, though formal offers can be relevant to costs after judgment.
Can I recover all my legal fees if I win?
Usually only a portion. Full recovery is exceptional and generally requires conduct justifying an elevated scale.
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