David Turner
Foot Anstey LLP
Ask the Expert: Dispute resolution
David Turner, partner and head of dispute resolution at Foot Anstey LLP, explores a question lawyers are regularly asked.
Q. I have a good claim against x; will I win the case at court?
As a dispute resolution lawyer this is the question I am most frequently asked by clients or potential clients. Indeed this question is often asked at the very start of the case, even before I have considered any documents. It is then repeated throughout the lifetime of the case. It is also a very reasonable question. Clients want to know whether they will win their case and their lawyers should be able to give them a firm view.
Of course, the question itself is impossible to answer. Clients themselves know this only too well. My experience is that clients want a firm view from their lawyers but they know they cannot have a guarantee. In short, they would like their lawyers to be "participators not commentators".
So how do you answer the question? The first thing to do is to identify the issues which are going to be tried at trial. These "trial issues" can often be very different from what are important "client issues". The next thing to do is to work out which of the issues will be determined by legal argument (legal issues) and which will be determined by factual argument (evidential issues). A lawyer should be able to conclude which legal issues are winnable; factual or evidential issues are much harder to determine. Factual witnesses do not always come up to proof. It would be risky to proceed to trial where the main issues are factual ones.
As the case progresses, and you consider the documents; the evidence and the law, should in theory be easy to answer the win or lose question. However, of course, the earlier a lawyer can determine this call, the better, not least because the further you go on in a litigation process the more expensive it is. Which leads me on to the follow-up question from clients... "and how much will it cost?"
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David Turner
Partner and head of dispute resolution,
Foot Anstey LLP
david.turner@footanstey.com
01392 685219
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