Why Sometimes Good Court Cases Are Lost?
You are the plaintiff. You think you have an exceptionally good case. Your relatives and friends tell you that you can never lose. It has been the experience of this author that, on occasion, good cases are lost due to the following ten main reasons.
Failing to prepare
Preparation is one of the keys to a successful court outcome. This means meticulous preparation from start to finish- gathering documents, preparing witnesses, organizing your documents, submitting expert reports, and complying with the rules of procedure. Knowing what to submit and what to leave out is the key. Preparation in child protection cases, for example, involving your case against the Children’s Aid Society or CAS is crucial in persuading the judge on the merits of having the children return to your home under your care and custody.
Confidence is good, but overconfidence can give you a false feeling of security. It is good to be humble with your case and a little nervous about it. Being a little anxious will prompt you to do what is necessary to improve your chances of success.
Having unreasonable expectations
This may relate to overconfidence but has an aspect on its own. If you expect to get a million dollars and your case is worth only $1,000.00, you create an image of you of someone greedy and unreasonable. It is one thing to want to be compensated adequately for your losses and damages, and it is another thing to have unrealistic demands that will portray you as a greedy individual. Naturally, in CAS cases, you want a lawyer to fight for you against the Children’s Aid Society’s allegations. A good lawyer in a CAS case will advocate for you and leave no stone unturned to advance your case. The best children’s aid lawyers I have seen do this all the time. However, it is one thing to want the children to come home under a supervision order, and another to want the CAS to leave you alone if concerns about your children’s safety need to be addressed before the local children’s aid society agrees to close its file.
Failing to have a theory about your case
You did not go to law school, but you probably learned that every case must have a 'theory', which means you must be prepared to make persuasive arguments about logical and probable reasons that caused a particular situation to exist.
Suing the wrong person
If you sue the wrong person, you may end up empty-handed. If you suspect someone may be jointly or separately liable for your damages and losses - even in an insignificant way - joint him/her/it in the action.
Suing after the limitation period has lapsed
Be alert of the limitation period that applies to your case, for if you wait too long, your case may be dismissed. The issue of limitation periods tends to be esoteric, and legal advice is highly recommended.
Not sufficient evidence
You may have a good case, but if you do not have sufficient evidence to satisfy the judge or the jury, then your case will be dismissed. What is sufficient? Every case depends on its own facts. Sufficiency usually means adequate evidence to satisfy the onus on you to prove your case on the balance of probabilities (for civil cases).
Moral right versus 'legal' right
Just because someone is morally wrong for something done to you, it does not necessarily mean that he/she also liable to pay you something for that wrong. The wrong complained of must belong to a category of wrongs recognised by law.
Focusing on the wrong outcome you want to accomplish
You must know what you want. If you sue for the wrong remedy, you will not get what you really deserve. Thus, before you sue, make sure you know what exactly you want to accomplish.
Failure to mitigate your damages
Even if you have the law on your side, this does not mean that you are automatically entitled to receive any amount you ask. As a plaintiff, you have a duty to mitigate your losses, which means you must take steps to minimise your losses and maximise your benefits under the circumstance instead of doing nothing and expecting the wrongdoer to compensate you for 'everything'.
© Andreas Solomos, Barrister & Solicitor. All rights reserved.