Throughout this article, I will be explaining how to assess whether a case will be successful or not.
One of the important skills of a good dispute resolution lawyer is to analyse the prospects of success of a case, also referred to as “case viability”. Case viability is initially established by interviewing the client and conducting a factual and legal analysis of the case.
Subsequent factors that must also be taken into consideration in assessing the viability of a case are:
- The evidential factors;
- The economic/financial factors;
- The opponent’s case; and
- Previous court’s decisions on similar matters.
Evidential factors
The evidential factors are relevant to determine the evidence in favour and against the client. Witness evidence, for example, is only one of the different forms of evidence that might corroborate or have a detrimental effect on the client’s position. The availability or unavailability of a witness might have a significant impact on assessing whether a case will be successful or not.
Economic/financial factors
Economic and financial factors are also of paramount importance in assessing the success of a case. A lawyer would have to weigh and explain clearly to the client what the costs are of issuing proceedings and decide with the client if these costs supersede the remedy being sought by the client.
The costs of litigation will include the legal costs, the court fees and the cost of instructing experts. These costs might often tip the balance of the scale in determining whether litigation should be sought, whether a case should be settled or simply whether a case should not be pursued at all, because it is considered not economically viable. Even when a case is economically viable, assessing the ability of an opponent to pay if one party is successful at trial will also be vital in determining if it is worth litigating a case or not.
The opponent’s case
Another element to consider in assessing the viability of a case is understanding the strengths and weaknesses of the opponent’s case. This can be achieved by assessing the facts, the law and the evidence of the opponent and determining if the opponent’s case is stronger or weaker than the client’s case.
In a civil case the standard to be proved at Court is said to be “on the balance of probabilities”, as such a court is satisfied that an event occurred if the court considers that, on evidence, the occurrence of the event was more likely than not to have occurred. As such, whether the evidence of the opponent is stronger than the evidence of the client will be a significant factor in establishing whether a case will be won or lost.
Previous court decisions on similar matters
Lastly, the decisions of the court on similar matters might also be a decisive factor in assessing the viability of a case. Regarding this point, thorough legal research will have to be conducted to highlight those cases that might help or hinder the client’s position and be helpful in assessing whether a case is most likely to be successful or not.
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