When I was growing up, LA Law was one of the ‘it’ shows. I am unsure whether it was the power suits or the fact they all drove BMWs that drew me to the legal world, but it all seemed so glamorous.
Flash forward to the 90s and Ally McBeal dominated our TV screens. The courtroom featured Ally’s short skirts, meetings held in the firm’s unisex toilets and, of course, the Dancing baby. My family would regularly ask me if my colleagues and I would head down to a local bar to have a sing along at the end of the day with Vonda Shepherd. Short answer: no.
We can now get our weekly dose of legal drama from The Good Wife where political wheeling and dealing happens at least 3 or 4 times per episode. Importantly, where Mr Big from Sex and the City is a State Attorney.
The common thread between all three shows is that they don’t accurately portray the law. In TV shows, people see their lawyer with a problem and within 20 minutes, he or she is arguing their case before a judge with a furrowed brow and razor tongue. There are no documents, no conversations about costs, and most of the time – it’s interesting!
In reality, court can be pretty tedious and sometimes, dull. As a lawyer, I can admit it. We have to prepare piles of documents, chat with you about costs, and it takes months or even years for a court to resolve your matter. We’ve outlined the general process involved in a civil matter to help you better understand what’s involved with litigation.
1. Statement of Claim
Most cases begin by one party filing a Statement of Claim. That document explains who the parties are, and in legal terms, the facts of the matter.
2. Serve the Claim on the Defendant
Once the Plaintiff (the party instigating the matter) files the Statement of Claim, they then make arrangements to serve the claim on the defendant. The respondent has a fixed time to respond to service. In NSW, the defendant has 28 days to respond to the claim. Failure to do so can result in judgment made against them.
3. Exchanging Evidence
Once a defence has been served, the court is then in charge of case management and ensuring parties exchange documents and evidence promptly. Each party’s lawyers usually attend court on at least two occasions about case management. These attendances are short, and parties themselves don’t need to attend.
4. Alternative Dispute Resolution
Invariably the court will order that the parties attend a form of alternative dispute resolution before the trial. This is usually a private mediation.
If parties cannot resolve their dispute, the court will refer the matter for trial. A judge almost always hears civil hearings without a jury. The judge will usually have read some of the evidence and pleadings before the trial. A barrister or lawyer will “open” the plaintiff’s case, make oral submissions to the court on the matter, explain what evidence they will adduce and call the witnesses.
In most instances, each witness will have verified an affidavit setting out their evidence so they will not be required to ‘repeat’ that evidence. They will, however, be subjected to cross-examination by the defendant’s legal representatives. The defendant experiences a similar process with opening the matter and adducing their evidence.
The court will also allow each party to make either oral or written submissions following which, the judge hands down a judgment.
So as you can see, cases in real life are substantially drawn out events and far less exciting than Mike Ross and Harvey Specter make them appear. But take solace in that both Ally McBeal and your lawyer are trying to achieve the same goal: the best outcome for you, the client.
Questions? Let our disputes team know on 1300 544 755. But please don’t ask us about dancing babies – or for us to sing for you.
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