Before litigation begins: What do I need to consider?
Articles
Legal
Litigation / Arbitration
Prepare for legal disputes: Optimising your chances by taking early steps. Key points to consider in this article.
Martina Aepli
Legal Partner
Stefan Keller
Senior Legal Associate
I. Documentation is important
A court case is not only about what really happened, but above all about what can be proved. If the claimant is unable to convince the court of its position with objective evidence, the case will be dismissed. Well-maintained records are also important on the defendant's side to successfully defend against unjustified claims. Good documentation is therefore one of the key points in litigation.
Therefore, start documenting and keeping all evidence, relevant documents (e.g. contracts, proof of payment, etc.) and correspondence in chronological order (preferably digitally). Written communication (by registered letter or e-mail) is preferable to verbal agreements. The latter are very difficult to prove in the event of a dispute. If verbal agreements cannot be avoided, it is important to ensure that they are never made in private, but with witnesses whenever possible. It may also be helpful to document such agreements afterwards, for example by confirming them in an e-mail.
Depending on the situation, it may also be important to identify potential witnesses. Testimony is often essential evidence in a court case. It may therefore be important to obtain witness statements. However, it is important to bear in mind that preparing witnesses may give rise to suspicions of improper influence. This area of conflict must be examined with the help of a lawyer before any contact is made with a witness, in order to avoid undesirably compromising one's own position.
II. Communicate carefully
Communicate carefully with the oppposing party, especially if litigation is likely. Unwise declarations and statements can result in significant legal disadvantages in litigation, which may not have been considered at the time the statement was made. This must be avoided.
In difficult situations, it is also important to keep your emotions under control whenever possible. Emotional communication is counterproductive and damages your credibility. If in doubt, it is advisable to seek legal advice or representation when communicating with the opposing party.
III. Deadlines as a hurdle
Deadlines are a feature of legal proceedings. There are deadlines set by the courts or authorities, deadlines requested by the opposing party, and deadlines imposed by law. Depending on the type of deadline, the consequences of missing it vary: from no consequences at all, to mild consequences such as additional interest, to more serious consequences such as very short extensions, to irrevocable consequences such as loss of rights. If you intend to actively pursue a claim or are considering doing so in the future, it is therefore worth clarifying at an early stage the formal requirements that must be complied with in order not to suffer a loss of rights due to the passage of time.
All deadlines, whether legal, judicial or administrative, must be respected and clarified by a lawyer. It would be unfortunate to lose a case simply because you missed a deadline. In certain circumstances, deadlines may be suspended or extended, provided they have not expired.
IV. Amicable settlement
Consider the possibility of an amicable settlement: The chances of reaching an amicable settlement can be favourable before the start of litigation, because both sides are uncertain about the outcome of the potential litigation. Due to potential litigation risks, the parties are more likely to reach an amicable settlement at this early stage. Often a settlement can be reached more quickly and at a lower by obtaining a judgement in a court case.
By considering the above, you can make a significant contribution to preparing for litigation. Our team of experienced litigators look forward to representing your rights and interests in and out of court as well as before arbitration tribunals.
