The Problems with Being Fixed On “I Want My Day In Court”


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We watch law and court room drams on television and can easily get caught up in the drama and romanticised notions of it all.  The quick witted and clever arguments; the social justice causes and pro bono work being done; the dramatic and effective cross-examination of witnesses; and the edge-of-your-seat closing arguments with lawyers dramatically walking around in front of the jury.  Justice being delivered in all its well-dressed forms.

So, when we are wronged, or know someone who is, it can be easy to declare “I want my day in court!”.  You want to see justice done, and the court system is the place to go to get that justice. 

Not necessarily. 

The legal system in Australia is just that, a legal system.  Often this can be quite separate to the delivery of justice. 

This can be challenging for clients to come to terms with this when I burst their bubble.  Let me explain.

When you have suffered a ‘wrong’, or perhaps more accurately, been involved in a dispute of some sort, been on the receiving end of a bad deal or a failed promise, or suffered a loss and/or damage, going to court is just one option that may be available to you.  If you choose to go down that path then you are set for a long and uncertain journey. 

Court proceedings* irrespective of the state or territory that you are in, involve numerous procedural steps that the parties need to go through before being ready for a hearing (the hearing being the day where the parties go to court to make their arguments and have their evidence heard before the court).   There are no guarantees in the legal process, and you have no way of being certain of what the outcome at the end might be.  You will work with your legal team to prepare your case as best as you can, and your opponent will do the same. There are numerous variables that can impact on the final decision to be made by the court.

The time that can be involved in attending to each of the necessary procedural steps in a legal matter can be years.  The length of time can depend on things like the quality of the pleadings; steps taken by your opponent; the nature of the evidence required; the availability of the court to deal with the matter, and so on.  Very rarely in my career have I been involved in a legal proceeding where the matter was listed for hearing in less than a year from when it began.

During this time, the personal stress and anxiety levels suffered by clients are often at the peak.  The financial costs associated with legal fees to prepare a matter for hearing are significant – often more significant that you initially thought they would be.  The financial burden, plus the time taken to progress the matter, coupled with the increasing stress, anxiety and uncertainty associated with being involved in legal proceedings, are all things that are often underestimated when making the initial “I want my day in court” declaration.

I have heard it so many times – it’s not about the money, it’s about the principle.  That may be so, but at some point, it will become about the money.  At some point, it will become about the stress, about the pressure on personal and professional relationships.  The anxiety.  The sleepless nights and the uncertainty, knowing that if you are unsuccessful, not only will you have paid money in legal fees, not achieved what you were after, but you may also end up with a bill for your opponent’s legal costs, too.

There are other options that you can explore before you commit yourself to the long haul of legal proceedings.Think outside the square and think about what you really want to achieve in this process. Chances are alternatives like mediation, arbitration, or conciliation may be just the thing to help you achieve your ultimate objectives (or close to it), whilst saving you time, money, and maintaining your personal well-being. 

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Tracey Mylecharane - Solictor

Tracey Mylecharane has over 15 years experience in Law, including 12+ years of professional practice (6 of those years at partner level).

Both in court and out, Tracey has come to never underestimate the power of emotions and principles when people feel they have been wronged. She has worked with some of the country’s best Barristers and Senior Counsel to fight the fight on behalf of her clients, and has developed a unique perspective on the value attached to exploring alternative options to legal proceedings.