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If you have found yourself in a commercial dispute, it can be stressful trying to understand steps you can take to resolve the issue. Using a lawyer can help you resolve the dispute and will make the process more efficient than if you tried to work it out alone. Investing in a legal expert early on to confirm your legal position and negotiate with the other party can result in a better outcome for your business. This article will explain what you need to know about working with a lawyer to assist you during a commercial dispute.

How a Lawyer Can Help

There are benefits in hiring a lawyer during the early stages of a commercial dispute. A lawyer can assist in many ways, including that they can:

  • assess your legal position – a lawyer will determine your rights and obligations under your contracts and in relation to relevant laws and the dispute;
  • provide prospects of success – when they have reviewed all relevant materials, a lawyer can give you an indication of your prospects of success if the matter proceeded to court;
  • speak on your behalf – a lawyer can correspond with the other party on your behalf, particularly if the other side is represented by a lawyer. This will often help the other party take the matter more seriously; 
  • provide strategic advice – your lawyer will advise on your options and next steps in the dispute; 
  • handle settlement negotiations – at any stage of a dispute, your lawyer can handle settlement negotiations with the other party or their solicitor; 
  • conduct mediation – your lawyer can conduct informal mediation or settlement conferences; and
  • represent you in court – you will need a lawyer to draft court documents and appear in court if required.

How Lawyers Charge

Lawyers most commonly charge fees on a time basis. These lawyers work on an hourly rate and will charge for the time taken to assist with your matter. For time-based billing like this, you will pay for: 

  • all telephone calls;
  • meetings;
  • time the lawyer takes to review your documents; and
  • time the lawyer takes to draft correspondence and court documents. 

Some lawyers, like LegalVision, charge on a fixed-fee basis for work, which can give you certainty on legal costs at the early stages of a commercial dispute. Some other lawyers offer services on a no-win, no-fee basis, where you only pay their fees out of any successful settlement reached in the matter.

When engaging a lawyer, you should request an estimate of the cost of the work they will provide. They will then provide you with a costs disclosure form. This form confirms that if the estimate changes, they must provide you with an updated estimate. It is common for lawyers to ask you to pay an amount into their trust account. This will act as an advance on their future costs.

Working With a Lawyer

Lawyers in Australia must follow professional rules set out in legislation in each state and territory. While your lawyer is working for you as their client, lawyers also have obligations to the court.

For example, a lawyer’s primary duty is that they cannot do anything that will mislead the court or waste the court’s time. They cannot be involved in any potential fraud, illegality or anything else improper. 

In practice, this means that, in some circumstances, they can not follow your instructions. If you do not agree with your lawyer’s advice, they may ask you to confirm in writing that they have provided certain advice and you have decided not to follow it. 

Do You Need a Barrister?

Your solicitor may recommend that you also brief a barrister to assist in your dispute, particularly if the issues are complex and if legal proceedings are required. A barrister is an expert advocate, with specialist skills to appear in court and in specific areas of law. 

For example, some barristers specialise in leasing or construction disputes, others in employment matters. 

Barristers are skilled at:

  • appearing in court;
  • making arguments before a judge; and
  • examining and cross-examining witnesses.

A client cannot directly engage a barrister, a solicitor must engage them instead. Your solicitor will then instruct the barrister on the assistance they require for the case. A barrister can give you specialist advice on your prospects of success. They can also provide strategic advice on how to run a case. They will appear in court on your behalf, including at a final hearing. 

Legal Costs

If your dispute ends up in court and you are successful, the other side might have to pay some of your legal costs. However, there is no guarantee that this will occur. If you negotiate a settlement, you will most likely have to pay your own legal costs.

Key Takeaways

If you have found yourself involved in a business dispute, the assistance of a lawyer can greatly ease the stress of the situation. Lawyers can speak on your behalf and provide strategic advice on how to achieve the best possible result. Further, lawyers can handle any negotiations with the other party, so the burden of doing that is not placed on you. If you are seeking the advice of a lawyer for the commercial dispute that you are involved in, contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

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About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

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  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
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