Legal advisors often use complex terminology and it can take time for a lawyer and a client to speak the same language. While each legal professional’s style of communication is different, it is important that clients are on the same page as their advisor when receiving advice about commencing or engaging in civil litigation.
In this article, we summarise five common legal terms used in litigation matters to assist with a better understanding of legal terminology.
Pleadings are the formal court documents that set out the claim or defence of a party in a court proceeding. These documents are filed with the appropriate Court. Properly drafted pleadings should identify the required factual issues in accordance with the Court Rules, and set out for the Court and the other parties the elements of the legal cause of action being alleged. Pleadings should also particularise the allegations made by providing details supporting the facts set out in the claim. Pleadings are important because neither party can lead evidence in a trial if that evidence is not relevant to the issues in dispute in the pleadings. Depending on what happens throughout any given matter, parties may file a number of pleading documents such as claims, defences, replies, counterclaims, and amended versions of those documents.
Disclosure refers to a process whereby parties in a dispute each have to make a list of all documents that are (or have been) in their possession or control which are directly relevant to matters in dispute in the pleadings. This list is called a “List of Documents”. The parties then exchange their List of Documents with the other party and (if a party requests) inspect or provide copies of each other’s documents. There are Court rules which govern how documents should be disclosed, and each party’s duty to disclose to the other. Most importantly, a party’s duty of disclosure is ongoing, and does not end simply because a List of Documents has been provided. Disclosure allows the parties to a legal dispute to “put their cards on the table” (so to speak), so as to prevent surprise at any trial, and also to give themselves a better chance of settling the dispute without a trial and saving time and costs.
Jurisdiction refers to a Court’s official authority or power to hear and determine legal disputes. Essentially, when considering the jurisdiction of a Court, we are asking the question, ‘Is the (relevant) Court able to hear the case’? In Australia, there are Courts that have federal jurisdiction (dealing with laws of the Commonwealth), and Courts that have State or Territory jurisdiction (dealing with laws of the State or Territory). Sometimes a State court is empowered with jurisdiction to hear a Federal matter, and vice versa. The jurisdiction of a State court often depends on how much money a person’s claim is for; for example, if a claim for money in Queensland exceeds $750,000, then it is the Supreme Court that has jurisdiction to hear the matter.
Privilege or ‘legal professional privilege” is a client right or entitlement which exists to keep client communications with their lawyer confidential. If you have shared information with your lawyer (whether in writing, email, in-person or over the phone), it may be covered by advice privilege or litigation privilege. In other words, if you’ve shared information in the course of obtaining legal advice or with respect to anticipated or existing litigation, then it is privileged. Privileged information is not to be disclosed to the other party unless you instruct your lawyer to do so, or in some circumstances where the other party may successfully dispute your claim to privilege.
During negotiations between parties to resolve or “settle” a dispute, lawyers often exchange ‘without prejudice’ letters and emails, or have ‘without prejudice’ conversations. Using the words ‘without prejudice’ on correspondence, or before speaking about a matter, is a method of preventing that correspondence or conversation from being later used in Court, and is enabled by a long-standing rule of evidence. However, simply using the words ‘without prejudice’ does not automatically provide a ‘coverall’ protection. In order to attract the ‘without prejudice’ protection, the correspondence or conversation needs to relate to settlement negotiations or statements of compromise. In this way, ‘without prejudice’ correspondence is very different to ‘open correspondence’, which can be shown to a Court as evidence against the other party.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.