Coping or Dealing with Litigation
What it really means
We see people fighting out litigations and law suits for various reasons - it could be because of property matters, criminal issues or family based cases like separation, claiming maintenance or divorce.. However, many of us are ignorant about what is involved when we are required to attend court for the first time and may end uo doing things that sometimes go against our interest. There are certain points that need to be carefully taken into account and followed while you are involved in a litigation and at the same time it is better to be prepared so that you are not taken by surprise at the pace or the procedures involved which may seem unecessary or far too lengthy!
Today we see that everybody is suing anybody for the minutest of reasons and the session courts and other higher courts are filled to capacity with lawyers, litigators and cases. Without enough facilities to cope with such an onslaught of cases, it is not surprising that cases often take tens of years to get to the judgment stage. And even after that it may not be over since there are higher courts to take your case into if the judgment goes against you ! I have known people fighting cases all through their lives and losing whatever money and peace of mind they had without actually achieving anything at the end !
What does it involve?
When we compare the working of our legal system to other countries especially Western countries, we realise that our legal system falls short in all respects. Whereas they tend to finish their cases within the stipulated time, we seem to have a time frame only on paper and no one seems to really care about keeping to schedule any set schedule which means you can never be sure when your case will conclude.
Here I would also like to say that personal experiences have made me very bitter about the legal and court proceedings and I would strongly advise anyone thinking of going in for a litigation to think a hundred times before venturing into one, because once you start with it, it takes over your entire life ! Even if there is a 10% chance of compromise it is better to grab that opportunity rather than filing a case. Because once you get in it becomes very difficult to get out !
I am listing out all the different stages of court proceedings and what it actually involves with regard to time, money and other issues.. Now that you have made up your mind to sue a person, company or an institution you have to take certain necessary steps to make your case strong and winnable.
1, First of all, get the best lawyer in town – if not the best at least one who has a good standing and reputation. Your lawyer is the most important person as far as your case is concerned and you cannot compromise on that. Give him an advance retainer fee and also make sure that you pay him from time to time since lawyers depend on what their clients pay them. Here it is also important to note that some lawyers like to be paid for each and every time they attend the case irrespective of whether the case has been heard or not , whereas some other lawyers ask for a lump sum every 3 months or so ! So you need to have ready cash to pay your lawyers from time to time.
2, After fixing up a lawyer, you will meet him/her and make them aware of your case and furnish the necessary documents and get a legal opinion from the lawyer as to whether your case is sustainable or not. If there is any doubt, I would suggest that you should drop the case and try negotiating – the lawyer might suggest that to you and may call up the other party and negotiate with their lawyer before proceeding.
3, If the lawyer is convinced that your case has merit , the next step would be to file the case in the court of law. This can be done immediately after the necessary forms are filled and you pay the court fees and register the case . However, some lawyers do make false promises just to get a client even though they can see that the case is not worth contesting, so it is better to ask before hand whether it is worth filing the case.
4, A notice is sent out to the opposite party ( the defendant) and they are given time to appear before the court with their lawyer, which is normally between one to two weeks.
5, The defendant’s lawyer and your lawyer argue it out in front of the judge ,who then decides whether the case is worthy of being filed. Once that is done the case gets registered and transferred to the respective court – civil, criminal or family court ! You may have to wait a week or two or longer to get a date for hearing in the stipulated court. ( so you have already been 4 weeks into the case which is just the beginning)
6, At this stage you will have to meet your lawyer and ask him what documents are required and make a careful note of it after discussing with him so that you don’t miss out on anything. It is good to have all documents in hand while you start the proceedings. If it is property related matter you may have to get some documents from the land records office which takes time to apply and wait for the same.
7, Once you are given a date, normally both the sides would want to give physical evidence in the form of documents that have been collected and prepared for the case. All the documents should be in the originals and have to be attested by a notary when you submit it to a court. Make sure that you retain at least photocopies of each document you submit and also file them together. It is not just helpful , in fact essential to make a note each time you submit a document so that there is no confusion at a later date. Many a times after you submit the original documents you are again asked to submit the same documents. And as far as possible submit notarised copies and keep the originals or if the courts insists on the originals make notarised copies and keep them with you. These are as good as originals and can be used in the future !
8, Once the documents are submitted – here too there is bound to be a delay with lawyers from either side asking for time to get the original documents ready, one can easily set aside another month or two which means you are nearly 10 -12 weeks into the case !
9, After, all the documents have been submitted the court proceedings begin. Your lawyer will present the case before the judge and the defense lawyer is given an opportunity to argue against the merits of the case asking the judge to dismiss it. It is not likely that both the arguments might happen on the same day. After this procedure , your lawyer will put you on the witness stand and ask specific questions related to the case .
10, Next it will be the turn of the defendants lawyer to cross examine you. This may be done soon after your lawyer finishes his evidence or after a few days . Either way with court holidays, weekends and seminars that the lawyers and judges are expected to attend , the normal time taken would be 3 - 4 weeks to finish this process ( you are 14 – 16 weeks into the case ). You are lucky if both examination and cross examination happens on the same day or even the same week.
11, Now the next stage would be for calling witnesses and getting their evidence and also cross examining them. This is a very long process since they need to be notified and served summons after which they may take their own time to attend the court proceedings, some may even delay by not being there and also not communicating. If there are many witnesses it adds to the delay .Normally, it takes almost a year before all the witnesses are examined and cross examined. Many a times there are more new evidence brought in and new witnesses called for examination which means even more delay.( you are a year and quarter or longer into the case )
12, The defense lawyer will also ask his client to testify in the court which may be a lengthy process.After he has been testified it is the turn of your lawyer to cross examine the defendant.here too there will be delay since lawyers prefer to consult their clients depending on the testimony given, before proceeding with the cross examination. ( a further 2 weeks)
13, Once the case has been well established with both sides being cross examined and all witnesses been called and examined , it is time for arguments between the two lawyers. Since this is a long procedure which involves summing up the case in favor of their respective client, the time factor brings in more delays...according to many litigants it is at this almost last stage that the case gets stuck and gets delayed. We can easily keep 2 months or 3 months for the two arguments to be over and the case drawn to a conclusion .
14, The final stage is the Judge giving his/her judgment for the case. This generally is done within 2 or 3 weeks after the arguments are over and the vase has come to an end. However, one can safely assume that almost 2 years have passed since the case has been filed. This is when the case is proceeding normally with normal delays. But most cases don't proceed in the same manner, there may be many unforseen circumstances like one of the litigants falling sick or an important witness playing traunt, which will add to the delay and the case may pull along for another year or two.
15, Once you get a copy of the judgment, if you are unhappy with it or if it has gone against you - you have the option of taking your case to a higher court and this of course involves more time and more money since the lawyers at higher courts charge much more than the ones attached to sessions court !
Why the delay ?
This kind of delay is seen only in our country because of many reasons. The first and foremost reason is because of the number of cases filed each day and poor management of time by all concerned. The lawyers take on too many cases and are unable to attend to all at the same time, so put off a few cases to a later date which may well be your case.
The judges in sessions courts have too many cases to handle and a huge back log . So, it is not possible for him or her to give future dates in quick succession since there are hundreds of older cases waiting to be cleared which becomes priority to them. Added to this is the lack of space in most cities where one finds court rooms in dark and broken down buildings with very few facilities for the lawyers and litigants and a dearth of lawyers and judges and the constant interference by the politicians who keep transferring judges from one place to the other at their whims and fancies. In the mean time everybody waits and curses the system.
Another reason for the delay is the may holidays and vacations and issues like general elections, state elections or communal disturbances - all of which tend to affect the timing and time factor of a court proceeding. At times, one may have to waste an entire day waitig for the case to be heard and make some progress , only to realise that it has been postponed to a later date. Such things might happen many times in the course of your court proceedings , all of which add to the dealy.
One more important factor is the lax attitude in general by the legal community.They easily grant fresh dates and put off the proceedings without any thought for the time wasted by the client and others who are waiting endlessly for their case to be called and keep coming back time and again. If the judge is strict and stands firm about finishing the proceedings the very day it is meant to be, a lot of time can be saved.
At the end of it all
If we were to look at the entire experience from a practical point of view we realise how futile the whole exercise is.You have lost precious time, money and have nothing much to show for it. Unless it involves property that is worth crores and you are sure f your claim or a criminal case that needs to be registered , most other things are best settled outside the court.
This is not something that I would like to do because courts and a country's legal system is there to serve a purpose and help the citizens. But when it creates more problems than find solutions it is better to keep it as a last option. Most people opt for litigation because of ego problems since they dont want to bow down and compromise. A compromise in fact involves both sides bending and coming to a certain agreed point. It is best done with the help of your advocate since he/she is able to see the issue from all angles and advise accordingly.
We see even the very rich and the famous people getting caught up in litigations and most of the time iit end in compromise since they realise that the time and money spent is simply not worth it !
To conclude, I would say that all of us have the right to approach a court of law to find solutions for our problems but with our legal system being lax and filled with loop holes it is better to keep it as the last option !
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