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Entering into litigation is an important decision to make. There are many considerations that ought to be addressed at all points in litigation: before you begin, and throughout as more information comes to light. Below are a few concepts that all litigants and potential litigants should be familiar with and asking their lawyers about:

1. Legal Costs

In Ontario, typically the winner of a lawsuit is awarded part of their legal fees by the court at the end of a lawsuit. There are numerous factors under the Rules of Civil Procedure that the court will consider in awarding costs, and ultimately the decision is purely at the court’s discretion. As a general rule, however, litigants should not expect to recover 100% of their legal fees that they pay their lawyer, even if they are completely successful in the litigation.

Given that the loser is often ordered to pay some of the winner’s costs, it’s critical to evaluate your chances of winning and not only what your potential legal bills are for your side, but your exposure to an adverse cost award should you be unsuccessful in the litigation as well.

2. Recoverability

While winning is often the point of a lawsuit, winning without the ability to recover anything renders the victory pyrrhic. It is important to evaluate and re-evaluate whether or not the other side will have the ability to pay if you are successful in either proving your case as the Plaintiff, or defending the case as a Defendant and being awarded your costs from the Plaintiff.

3. Time & Stress

An often underestimated factor in litigation is the time and stress involved. You will have to make important decisions throughout the litigation process about strategy, dealing with witnesses, being examined under oath, and discussing settlement possibilities. While your lawyers are there for you to answer your questions and give you excellent advice, often times it is a lengthy, expensive, and stressful process.

Particularly with COVID adding to the court’s backlog, cases are taking years to get into the inside of a courtroom; the majority never do as the parties prefer to reach a negotiated settlement.

4. Settling is Normal

The vast majority of lawsuits settle; somewhere in the range of 95%+. While some lawsuits have some step that goes before the court, such as a preliminary motion, seldom few cases are resolved by a judge or a jury following a trial, let alone on an appeal after a trial verdict.

Parties should not feel badly about settling — it’s an economically rational thing to do!

Typically when considering a settlement with your lawyers, you will discuss the risks and rewards of continuing the lawsuit; your best and worst case scenario; your lawyer’s opinion on the strengths and weaknesses of your case; and the benefits and drawbacks of settlement.

A settlement means, of course, that you do not get a judge to decide your case with a typically publicly published decision. It also means that all parties have certainty as to the results so no one is ‘rolling the dice’. It also puts an end to the parties paying ongoing legal fees associated with moving the litigation forward.

As lawyers often say, a sign of a good settlement is a settlement where everyone walks away unhappy. While it is not my desire to ever make my clients unhappy, there is some truth to this phrase.

Conclusion

It is important to consistently evaluate and re-evaluate your position in litigation as facts change or new facts come to light or even as the law evolves over the court of litigation. 

Doing so will set you up for success and allow you to set and re-set your expectations moving forward.


At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law,  real estate lawestate lawemployment law, health law, and tax law. For over 130 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125. The material provided through the Mills & Mills LLP website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.

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