01 Apr Cost of Litigation – both personal and financial
What does litigation really cost?
I was sitting in Court recently waiting for my directions hearing to be called. A trial had been running before the same Judge and she was hearing cross-examination of the wife (who was self-represented) conducted by an experienced Barrister.
The cross-examination focused on the wife’s spending as evidenced by bank statements from 2 years earlier. The wife was seen as evasive when she couldn’t recall what she had drawn funds to pay for – did I mention that the statements were from 2 years earlier?!
The wife looked very stressed and was becoming more confused as the questioning progressed. It struck me yet again how artificial our litigation system is. I know I struggle to remember what I spent money on 2 weeks ago and yet here this lady was being expected to recall with accuracy her spending from years before – in circumstances where she was already very stressed and anxious and a lot was riding on the outcome of the proceedings.
On another day recently, I learned of a litigant having to turn up for a trial and actively participate in circumstances where their parent had died that morning and they were too afraid to ask for an adjournment. It had taken so long to get their trial listing that they were afraid to have to put it off in case they were relisted many months later and they needed to get on with it, not ideal circumstances to function optimally in what may be a process that could have long-reaching consequences for their future.
I am continually reminded that an adversarial process is not good for families already in crisis. It may be necessary for the very few matters where all else has failed or where one or both parties can’t participate in alternative dispute resolution. If there are options available that keep people out of Court, those options must be fully explored or ruled out before matters are litigated
Lawyers are obliged to talk to their clients about alternative dispute resolution but some lawyers don’t fully explore those options or only pay lip service to them.
I encourage all parties to consider ‘kitchen table’ (can you sort this out yourselves over a cup of coffee) or mediation (can you sort it out with the assistance of a Mediator) or collaborative (do you need support from a Lawyer who isn’t going to litigate but will expend their energy and expertise on settlement, and use collaboratively trained Family relationship specialists and Financial experts in a team where necessary to assist?) and to only ever consider having their lawyer write letters or go to Court when the less expensive, less invasive approaches don’t work or are truly unsuitable.
For more information, Belperio Clark runs free Relationship Breakdown seminars where anyone can attend and learn the pros and cons of each of the process options.