Post by litigator on May 27, 2007 14:04:00 GMT -5
If You Do Not Know Where You Are Going, You Will Wind Up Somewhere Else!
Ninety-nine percent of the time cases are “won” or “lost” not on the law, but on the facts. Most lawyers simply do not take enough time to gather all of the relevant facts from their own client in order to be able to make an assessment of their case or to pursue disclosure from the other side which can be crucial to an evaluation of the likelihood of success.The gathering of information, of course, also necessitates obtaining supporting documentation and the names of those who can substantiate your version of reality on important factual issues. You have to be sure that you do not make the same mistakes as the lawyers do.
Once you have obtained enough information from your own recall of the FACTS and from the other side, you will then be able to isolate, not just the broad area of law that is involved, but more importantly, to appreciate the nuances of the jurisprudence that could make a difference to your case. Knowing the law at this early stage of the proceedings will also be vital in order to assist you in gathering the necessary relevant factual information to prove your case.
It is of the utmost importance importance to formulate
your case so as to be able to tell your story. Developing a theory of the case is necessary as a blue print. It is, if you wish, a strategic plan for your case that might have to be tweaked or altered as the case matures, but which, nevertheless, is essential to provide direction so that you will, in fact, know
where you are going so that you do not wind up in the wrong place!
Assessing the strength and weaknesses of your case is a constant process that you have to engage in as more facts become known. As hard as it may be it is important to not allow your emotions to drive the case if there is no merit in law to your position. Pursuing lost causes(TD PAY ATTENTION TO PURSUING LOST CAUSES MIGHT HELP YOU GET YOUR POINTS ACROSS MORE EFFECTIVELY) will detract from the valid and legitimate claims that you will have and will provide ammunition to the other side to justify their particular lack of disclosure and general act of cooperation on the file.
Getting the Judge to help you: the Case Conference
The Case Conference is the first opportunity to try and inject judicial involvement in the proceedings and to get the Judge to assist you in isolating the issue and to gather the information you require to properly assess your case. What can be
accomplished at the Case Conference depends on a variety of circumstances. The following are some suggestions with respect to effective Case Conferences: In reality, what can be accomplished at a Case Conference and the nature of the
Case Conference Brief will depend on:
1. How long the parties have been separated if divorce/custody.
• Emotional temperature
• Parties jostling for position
• A Status Quo as been established
2. Amount of negotiation/disclosure that has taken place since the respondents were served, and
• No negotiations
• No disclosure
• Extensive negotiations
• Extensive disclosure
3. The nature of the issues in dispute
• Children: Residency, decision making, incidents of custody or child protection issues.
DRAFTING A CASE CONFERENCE BRIEF
Before you draft the Brief you need to review your files to:
• Get the facts right
• Identify missing factual information
• Identify areas of agreement
• Identify the issues in dispute
• Based on the nature of the issues:
1. Assess the nature and amount of disclosure needed
2. The need for outside valuations, reports or calculations
3. The need for a temporary order
4. The need for a disclosure order
5. The need for a case management order
• Is the case ready to discuss settlement?
• What are the obstacles to a settlement?
To decide what you want to accomplish you first need to answer the following questions?
• Which of the purposes in Rule 17(4) of the family law rules are important to this case?
• What’s missing?
- Information
- Proven Facts
- Documents
- Assessment
- Valuation
- Other parties
• Is there a dispute on the law or its interpretation?
Drafting the Brief.
• Draft the brief with a purpose in mind
• Identify the issues in dispute
• Single out the nature of the dispute, if known
• Identify what is required in order to be able to move on to the resolution stage of the proceedings
• Clearly set out what information/documentation is needed with respect to each issue in dispute.
• Identify the information/documentation that your client will produce and ask if the other side is requiring any other relevant disclosure.
• The Brief should be based on the review of the file as set out
above and what you want to accomplish as set out above.
Motions for Interim Relief
Motions for interim relief are an important part in setting the stage for settlement since they provide an opportunity to create legal rights and obligations that will inevitably affect the eventual outcome of the case. For this reason, one has to be judicious in what motions to bring so as to make sure that the outcome will be a positive one for you and not become a hurdle to be overcome. Motions for interim custody, support, exclusive possession and the posting of security for costs or the equalization payment are vitally important and will dictate the
direction of the case.
TAKING THE SHORT CUTS TO GET TO YOUR DESTINATION What will they admit?
Requests to Admit are a very valuable tool in getting the other side to focus on the case and narrow the factual disputes. The rules do not limit how many times a Request to Admit can be served on another party and as such, one ought not to wait until the case is on the trial list to serve such a request. It is prudent to do it as early as possible so to flush out the real factual disagreements between the parties and force opposing counsel to pay attention to the case at a time when you want them to. It is very important in formulating your Request to Admit, to remember the following:
1. Make each request simple.
2. Isolate single factors and avoid a request to admit a combination of facts.
3. Formulate the request so that an admission will make it clear as to the fact that is no longer in dispute.
4. The request should be directed towards admission of facts and/or documents, not perceptions, theories or interpretation.
5. Frame the request in neutral non-emotional language.
6. Request should avoid the use of adjectives, adverbs or hyperbole.
Ninety-nine percent of the time cases are “won” or “lost” not on the law, but on the facts. Most lawyers simply do not take enough time to gather all of the relevant facts from their own client in order to be able to make an assessment of their case or to pursue disclosure from the other side which can be crucial to an evaluation of the likelihood of success.The gathering of information, of course, also necessitates obtaining supporting documentation and the names of those who can substantiate your version of reality on important factual issues. You have to be sure that you do not make the same mistakes as the lawyers do.
Once you have obtained enough information from your own recall of the FACTS and from the other side, you will then be able to isolate, not just the broad area of law that is involved, but more importantly, to appreciate the nuances of the jurisprudence that could make a difference to your case. Knowing the law at this early stage of the proceedings will also be vital in order to assist you in gathering the necessary relevant factual information to prove your case.
It is of the utmost importance importance to formulate
your case so as to be able to tell your story. Developing a theory of the case is necessary as a blue print. It is, if you wish, a strategic plan for your case that might have to be tweaked or altered as the case matures, but which, nevertheless, is essential to provide direction so that you will, in fact, know
where you are going so that you do not wind up in the wrong place!
Assessing the strength and weaknesses of your case is a constant process that you have to engage in as more facts become known. As hard as it may be it is important to not allow your emotions to drive the case if there is no merit in law to your position. Pursuing lost causes(TD PAY ATTENTION TO PURSUING LOST CAUSES MIGHT HELP YOU GET YOUR POINTS ACROSS MORE EFFECTIVELY) will detract from the valid and legitimate claims that you will have and will provide ammunition to the other side to justify their particular lack of disclosure and general act of cooperation on the file.
Getting the Judge to help you: the Case Conference
The Case Conference is the first opportunity to try and inject judicial involvement in the proceedings and to get the Judge to assist you in isolating the issue and to gather the information you require to properly assess your case. What can be
accomplished at the Case Conference depends on a variety of circumstances. The following are some suggestions with respect to effective Case Conferences: In reality, what can be accomplished at a Case Conference and the nature of the
Case Conference Brief will depend on:
1. How long the parties have been separated if divorce/custody.
• Emotional temperature
• Parties jostling for position
• A Status Quo as been established
2. Amount of negotiation/disclosure that has taken place since the respondents were served, and
• No negotiations
• No disclosure
• Extensive negotiations
• Extensive disclosure
3. The nature of the issues in dispute
• Children: Residency, decision making, incidents of custody or child protection issues.
DRAFTING A CASE CONFERENCE BRIEF
Before you draft the Brief you need to review your files to:
• Get the facts right
• Identify missing factual information
• Identify areas of agreement
• Identify the issues in dispute
• Based on the nature of the issues:
1. Assess the nature and amount of disclosure needed
2. The need for outside valuations, reports or calculations
3. The need for a temporary order
4. The need for a disclosure order
5. The need for a case management order
• Is the case ready to discuss settlement?
• What are the obstacles to a settlement?
To decide what you want to accomplish you first need to answer the following questions?
• Which of the purposes in Rule 17(4) of the family law rules are important to this case?
• What’s missing?
- Information
- Proven Facts
- Documents
- Assessment
- Valuation
- Other parties
• Is there a dispute on the law or its interpretation?
Drafting the Brief.
• Draft the brief with a purpose in mind
• Identify the issues in dispute
• Single out the nature of the dispute, if known
• Identify what is required in order to be able to move on to the resolution stage of the proceedings
• Clearly set out what information/documentation is needed with respect to each issue in dispute.
• Identify the information/documentation that your client will produce and ask if the other side is requiring any other relevant disclosure.
• The Brief should be based on the review of the file as set out
above and what you want to accomplish as set out above.
Motions for Interim Relief
Motions for interim relief are an important part in setting the stage for settlement since they provide an opportunity to create legal rights and obligations that will inevitably affect the eventual outcome of the case. For this reason, one has to be judicious in what motions to bring so as to make sure that the outcome will be a positive one for you and not become a hurdle to be overcome. Motions for interim custody, support, exclusive possession and the posting of security for costs or the equalization payment are vitally important and will dictate the
direction of the case.
TAKING THE SHORT CUTS TO GET TO YOUR DESTINATION What will they admit?
Requests to Admit are a very valuable tool in getting the other side to focus on the case and narrow the factual disputes. The rules do not limit how many times a Request to Admit can be served on another party and as such, one ought not to wait until the case is on the trial list to serve such a request. It is prudent to do it as early as possible so to flush out the real factual disagreements between the parties and force opposing counsel to pay attention to the case at a time when you want them to. It is very important in formulating your Request to Admit, to remember the following:
1. Make each request simple.
2. Isolate single factors and avoid a request to admit a combination of facts.
3. Formulate the request so that an admission will make it clear as to the fact that is no longer in dispute.
4. The request should be directed towards admission of facts and/or documents, not perceptions, theories or interpretation.
5. Frame the request in neutral non-emotional language.
6. Request should avoid the use of adjectives, adverbs or hyperbole.