Frequently asked Questions
This article has been written to assist you as a person who is new to needing a professional legal person. We hope our readers will love it! How do i know if i need a commercial lawyer? I have had an issue arise and I’m not sure if i need professional help. Ok so hear are some simple guidelines to putting a file together.
Simple guidelines to putting a file together.
- Create both a physical file and a file/folder on your computer
- Create at least 4 sub folders within that. Give these titles like
- Emails / history
- You are going to need to create a story line of correspondence
- Write notes detailing what you want the outcome to be.
Once you have done that, then organise to talk with a lawyer who can asses the best course of action
Why I need a "Commercial lawyer"
I want to represent myself. This is not a good idea. There may be some situations where you may be able to represent yourself, but a commercial legal case is not one of them. You will need to do a great deal of research in preparing for any type of court appearance. Here are some helpful tips. There is much to know about how a court works.
Understanding Commercial law
Firstly don’t assume that you understand the law unless you have had many years experience. There are procedures and processes involved.Be careful not to get advice from people who only know what you know. Additionally Television shows give a somewhat misleading view of what can happen in the courts. Always seek legal advice. Prepare yourself. Allow yourself time to get fully informed of all matters associated with our case.Seek advice from the Courts Council at our local courts or give legal aid a call as well.
I dont speak very good English. What should I do?
Call the court staff. An interpreter can be hired by the courts. You will need to explain to them your language and the dialect you speak. This will give them the knowledge to know which interpreter is needed.
I have a hearing impediment
Should I have a Lawyer?
In some circumstance where you have a small claim, and generally under $20,000 you can go through the small claims court. These are generally settled with a mediator working to get an outcome for you.
This still requires a process of researching and compiling your case.
The legal system and the law are complicated. You as a respondent or applicant( defendant) are required to know what you are doing when you are in the court. You will need to know and understand what information you need to actually prove your case. How will you source this information and knowing how to present this in court. The Judge and court staff will not look after all this for you.
There are helpful tools on the internet that can guide you as well as our guide in this article.Putting it all together is what you must do.
You being the person involved in the case will have emotions attached which may prejudice your position. Engaging a Lawyer will give you an independent view of what you can expect in your case. You may feel you are right and think your case is good, however providing evidence that proves your case is a whole other matter. It is important to not be vexatious when you go to court. You must remove your emotion from it. If you get angry in the court this may well go against you.
Most lawyers in court are not emotionally involved in what may happen in court with your case. They are trained to view the matter differently. Our lawyers do have feelings and will often take on cases because of this.
A good lawyer will be able to be objective for you. They will assist you in identifying whether you should go to court or suggest another less costly way to deal with the matter.
Lawyers are professionally trained in actually knowing the law, how to present your case in court and the procedures, which can be painful. If you get one of the procedures in the wrong order, this can set you back.,
You may only want particular parts of your case handled by a lawyer. You would do some of the work yourself and pay the lawyer to do the most important parts. Also get him to review what you have done.
How do I prepare for my case?
- Get organised.
- Create both a physical file and a file/folder on your computer.
- Don’t be scared to ask questions.
- Create at least 4 sub folders within that. Give these titles like.
- Emails / history
- You are going to need to create a story line of correspondence.
- Write notes detailing what you want the outcome to be.
- Call a Lawyer
- Read and understand the law.
- Read and understand “legal procedures”.
- Understand the facts of the case.
Taking your case to court and presenting it takes many months of planning and preparation. Make sure you are aware of this.
- What information and facts do you need to prove your case.
- How do you prove your facts
- What have you visibly seen or know
- With witnesses – what do they know or have seen.
- What evidence you need the Judge to see such as emails, photos, reports etc.
What happens if the other person has information that you need for your case. You need to know how to ask for disclosure of that information prior to any case and get access to that information.Your lawyer can assist you in this process. Often there will be a mediation process before going to court. A good lawyer will guide you towards this. Its at these meeting you will gather enough information to know if its worth going to court or you may realize the other person has a much stronger case than you. Always ask for disclosure and information relevant to your case. You may be required to make special applications to the court depending on your case. This takes time and must be done before you go to court.
Once you have done that, then organise to talk with a commercial lawyer who can asses the best course of action.
I am not sure where to start preparing for a trial?
4 simple things
- Create a draft theory first.
- Exactly what are you trying to prove?
- How can I go about proving my case?
- Can you actually prove your case?
Research and study the law associated with your case. Is it Commercial Law, Consumer Law, Criminal law etc Research relevant legislation and other cases that are similar to yours and the kind of legal issue. Cases that share similar facts to yours. Check which courts cases are heard in. Magistrates courts, Supreme Court , High Courts. Engage a lawyer to create a brief for you. Your task is to convince a Judge Remember that your job is to convince a judge to see things your way by:
- presenting evidence to prove the facts of your case and
- making a convincing legal argument to the court
If I represent myself what are the pitfalls to look out for?
If there is any information missing that you haven’t thought of, the judge isn’t going to know what it is.
You can often get frustrated representing yourself because if something is missing you are not going to know what it is unless you contact a lawyer. The outcome can be different if you have missed presenting important facts. You cant get upset with the court staff or judge as it is your responsibility to have it all before you.
You have to put a lot of time and effort into presenting all the information. Often the amount of time is not worth the effort if its for a small amount of money. There may only be once chance for you to get things right, so prepare and be wise. The Judge and court staff cannot represent you. Neither can they prepare any case for you. Seek legal advice from as lawyer.
Do I have to give copies of everything to the other person and their lawyer?
Each person by law has right to be given the others information about the pending court case. Each person is then allowed fairly to respond to them. The rules apply to both parties to have a chance to respond. This is natural justice.
How do I Prove my case or prove facts?
The court is there for the Judge to reside and make their decision based on hearing evidence on both sides
This evidence may include
- Witness statements verbal or oral
- Photos/email transcripts, reports, recordings,
The judges must follow certain procedures rules and processes ‘ These are called “rules of evidence”. If you are representing yourself, you have to follow the same rules. You need to know what these rules are. The rule allow the judges to accept and believe the information presented.
If the Judge hears and believes the information, the term used is ” the fact has been proven. If the Judge hasn’t heard any of the information or has and doesn’t believe it, the Judge is not able to make a decision based on that information.
The term “Burden of Proof” that is used in hearings and trials, means the person presenting the proof must prove that it is truthful. The courts must receive information from each person on each of the facts and has to be believed before the judge will say the fact has been proven. Assuming the fact is proven then a decision can be made about the issue in the court.
There will always be many facts and pieces of evidence for the court to look at. Bear this in mind when you are compiling and filing it. The term Standard proof is where the Judge has to be sure there are enough proven facts dealing with each legal issue.
The Judge in order to make a ruling needs to be able to add up all the facts and come to a decision based on whether things have been proven and how much proof exists. This is known as “weighing the evidence” The Judge then applies the law to the proven facts.
Sometimes what one person deems as a fact the other one doesn’t. Judges will not have been privy to information outside the courts. It is in your best interest to act with integrity and honesty, as the Judge may bear this in mind to see if you are a truthful person.
Laws have been established over a millennia and are are basically designed to assist in fairness and justice. We know this may not always be the case.
Can I ask the court staff to help me get information together?
Generally speaking NO. They may be able to assist with certain research things you need for your case. They can provide guidance . Call the staff at the courts to fin out.
Where do i get the information for my case?
- In Queensland you can start here www.courts.qld.gov.au
- Law dictionary www.thefreedictionary.com/laws
- Going to court www.courts.qld.gov.au/going-to-court
- Are you a consumer www.consumerlaw.gov.au/
- Searching for a case similar to yours www.austlii.edu.au/
Where do I find case law? Can I do my own legal research?
- Searching for a case similar to yours www.austlii.edu.au/
When searching online make sure you stay within the jurisdiction your case is in. Check the local library as well. The law is applied differently in different countries and states. Often the newer the case the more the judge will view this in his decisions making process. Generally speaking, the newer the case, and the higher the level of court, the more weight that particular case will be given by a judge. For example, if you can find a recent decision from the Supreme Court of Australia that relates to your case, that will probably be looked at better than an older case, or one from a trial-level court.
When I go to court can I ask for information to be given?
People should be asking for the other person to file all the other information that is relevant to the case, if you are going to have a conference. Pay attention in your research to know what you need. Dont forget to tell the judge.Also don’t wait for your case to be scheduled before you ask for more information.
I have witnesses, shall I call them?
This really depends on the case. You may need to call witnesses in order to:
- Prove certain facts by providing evidence
- Providing first hand evidence and information on what was seen and heard that is relevant to your case.
- to give copies of documents, photos or other information to the court to prove certain facts.
Don’t assume the judge has any information on your case. This is a dangerous mistake. Don’t assume the judge will understand and be on your side. You must prove that a certain event happened by providing the evidence to your case. Planning and preparing before hand all your evidence is the key to this. Remember each and every case is different. Hiring a lawyer is a great option. Think about what a witness actually is.
- It is someone who knows the situation as they saw and heard the whole event.
- A person who is an expert in knowledge, a therapist, doctor, fireman and has been dealing with someone on this case.
- A Banker or accountant who has documents pertaining to your case
There are many rules that govern what people can give in evidence in court. “Rules of Evidence” Witnesses are only able to give evidence on what they personally saw or heard. They are not allowed to give evidence on what someone else told them.This information can be objected to and called “hearsay” The rules of evidence can vary different depending on whether your case involves a federal law (like the Divorce Act) or other law You will need to get advice and do research on this Special training is given to lawyers in all these evidence rules. The rules are also known by the judges and applied to each and every case.
I want to write to the Judge. Can I do this?
My case has settled do i still need to go to court?
If you have settled the matter outside of the court- well done. The court still needs to be notified as soon as your case has settled. You may be required for a conference call to assess whether you still need to attend court. If you have presented a signed order to the court then you may not need to attend. Check with the court staff
If you do not have an agreement yet or written confirmation then you will still need to go to court.
The agreement by the parties needs to be put on the court record. This way there is proof of the matter being settled. The Judge may still want to see both parties to add clauses in so the court order can be enforced later on.