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Legal professionals often use jargon or technical terms, so it can take a while for both clients and lawyers to be on the same page. If the client is a larger business, the directors may already understand the legal process courtesy of either an in-house counsel or just going through court in the process of doing business. However, if the client is hiring a lawyer for the first time, it’s best to avoid legal jargon when you can and provide an explanation when you can’t.
While communication styles vary from lawyer to lawyer, it’s important that both parties have a common understanding of the matter at hand, especially when starting a complex undertaking such as litigation. This article provides definitions of the most common civil litigation terms.
Affidavit
An affidavit is a formal written document that outlines the evidence or facts sworn by a witness to be true and correct before an authorised official. An affidavit is often used as a tool to submit/tender evidence in courts or tribunals. Evidence may come in all forms from recounting your version of the ‘facts’ or annexing copies of physical evidence.Alternative dispute resolution (ADR)
These are dispute resolution processes that take place outside the court system or during the course of the litigation process. Examples of ADRs are negotiation, mediation, and arbitration.Award
This is compensation ordered by a court. You can be awarded or compensated for a number of things, such as physical injuries and damage to property.Cause of action
This is the legal name for the set of facts that you can use to bring a claim against a person or organisation in court. However, establishing a cause of action does not mean you will automatically win the case or receive compensation.Claim/statement of claim
A claim can mean a variety of things, but in the context of pursuing a ‘claim’, it can mean a legal demand used to start court proceedings on matters like debts, damages, or breaches of contracts.Compensatory damages
These are the monetary payment ordered by a court in a civil case for plaintiffs who have been wronged or incurred losses.Cost agreement
This is a formal agreement generally used when you engage legal services. The cost agreement details how a lawyer will charge you for their legal work. It is also sometimes referred to as an engagement letter/agreement or retainer.Counterclaim
This is a formal document that states a person’s opposing claim or allegations against the plaintiff, specifically after a writ or claim was issued to commence legal proceedings against them. For example, you can say that the creditor who said you owed them money also owes you money in return.Damages
Damages are generally monetary compensation awarded.Defence
This is the defendant’s response to a plaintiff’s claim against them in court. Defences are the reasons why the plaintiff should not succeed in their claim.Defendant (respondent)
The defendant is the party that answers to the claims of the plaintiff who has decided to take the dispute to court.Directions hearing
Once a plaintiff has filed a writ and the defendant has filed their response to the claim, the Court can schedule a directions hearing if needed. A directions hearing is a short hearing (may take 15 minutes or less or it could take substantially longer) where you work out the whens, whats, and whos of the proceeding. Basically, in short, the next steps of the proceeding.Disbursement fees
These are fees for the expenses that lawyers have paid on their client’s behalf. Disbursement fees can also include court fees, mediation fees, property search, translation fees, etc.Discovery (preliminary discovery)
At this stage, each party will provide the other side with documents and evidence that are relevant to the litigation proceedings. You need to even provide the evidence adverse to your claim or that could potentially damage your claim.Exhibits
This is a standalone document or object that serves as evidence in a court or is attached to the affidavit.Hearing
This is the time and place at which courts like the Federal Court and Supreme Court hears the parties argue their case and reach a decision.Litigation funding
Litigation funding covers a portion or all the costs of litigation in exchange for a portion of the proceeds if the party wins the case.Notice of appearance
This formal document confirms your appearance as a defendant or response after the filing and service of a statement of claim or summons. The notice is addressed to the court and all parties involved in a litigation case and tells them your contact information or your solicitor’s contact information.Originating motion
An originating motion is a document that commences civil court proceedings. It is generally required in cases where there is no defendant or matters under a particular Act.Plaintiff (applicant)
An individual or organisation that brings a case against another party in court.Pleading
These are court documents that present alleged facts relevant to the case. Examples of pleadings are defence and statement of claim.Self-representation
Self-representation is generally for litigants who cannot afford a lawyer or want to exercise their legal rights themselves and represent themselves.Statement of claim
A statement of claim is the initial document filed with a court by a party making a claim (called the plaintiff) against another party (called the defendant) to start court proceedings.Vexatious litigation
Vexatious litigation involves unreasonable cases or proceedings that were brought to court just to annoy, delay, or achieve another wrongful purpose.Summons
It’s generally considered a formal court document to ‘summon’ the parties to a hearing.Talk to a litigation lawyer
If you’re considering taking your case to court, you may want to get legal advice. Our litigation lawyers can determine which cases are worth pursuing and have a good chance of succeeding in court. We can help you manage every step of the litigation process, from pleadings and discovery to trial, settlement, and appeals.
To connect with TNS Lawyers, call 03 9052 3214 or fill in the contact form below.
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