Successful Civil and Divorce Litigation

Parties who engage in civil litigation, (litigation between individuals, companies or organizations) including couples seeking a divorce, want to be successful, to win. Winning in litigation requires a particular mindset – to think like the Bench, the Judicial Officer who will decide the case. There are no short cuts – the hard work the Bench does at the trial is done by successful parties at the beginning of the case, when it is in preparation. The cases of Marriage Counselling in Melbourne are increasing day by day and only civil and divorce litigation handle them with sanctions.

How the Bench Thinks and What its Job is

The Bench’s job is to:

  • Identify what the case is about – what both sides say the facts are
  • Decide if there is a basis in law for the case. If not the case is dismissed
  • Is the evidence relevant to the case? If not some or all of the evidence may not be taken into account leading to loss of the case
  • Consider both sides of the case – the facts and the evidence presented by both parties
  • Apply the law to the facts and the evidence
  • Make a decision as to which party has proven their case – who wins

In carrying out its job the Bench thinks forensically, it undertakes an investigation as a dispassionate scientist would, completely removed from any personal involvement. The Bench is not swayed by what a party wants to happen or thinks should happen or what seems right to one or the other.

In making its decision the Bench limits its task to the six steps above. This is the most difficult thing for litigants to understand. However, if it is understood early the case will be prepared more efficiently and from the end point, the only point that matters, the decision by the Bench.

How to Prepare a Successful Case

At the very beginning:

  • Take time to identify what the facts are. The facts are what is known, not what might have happened or should have happened or what someone thinks they would have done
  • Take time to identify and gather what evidence there is to prove the facts. Evidence is statements to be given under oath by people or documents that exist and are available to tender to the court.
  • Apply the facts to the law and see if there is anything missing. What is missing may be crucial to the success of the case.
  • If the evidence is insufficient can further evidence be obtained? If evidence is lost or unobtainable the Bench cannot consider it.
  • Do an objective analysis of the facts and the law of both sides.
  • Decide if you were the Bench, who you would find in favour of? If there is any doubt think again.

Successful litigation is about preparation and applying forensic skills to the issues involved. There are no short cuts and no-one should embark upon litigation if they have not consulted an attorney at law and had their prospects of success professionally evaluated.