Know about the roles of a litigation lawyer, and the things to look at when choosing (or when becoming) a good litigator in Canada
Updated 29 May 2024
We may have to go to court at some point in our lives, and it’s not a pleasant experience. The adversarial and hostile nature of a trial, the resources it needs, and the stress that it causes are just some of the reasons why we dread going to court.
This is why we have a litigation lawyer to defend our rights and ensure that our interests are raised in court. Then at least, we won’t be too afraid of facing the judges and the other party.
This article addresses questions that clients and the public may have about the legal profession. It works as an educational piece that law firms and litigation lawyers can also use for their clients.
A litigation lawyer (which usually refers to civil litigation lawyer) is a legal professional, who is an expert in representing their clients in a legal dispute before the court. Their clients may either be the plaintiff in the case (the one who filed the suit) or the defendant (the one being sued).
There is a wide range of disputes that litigation lawyers can help clients with, depending on their practice area that they specialize in:
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corporate and securities |
environment and energy |
family and estates |
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insurance |
intellectual property |
labour and employment |
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personal injury |
property and real estate |
taxation |
Litigation is the process of settling a dispute by submitting it for the court’s decision. People may understand litigation as applicable to both civil and criminal cases. Litigation usually refers to civil cases in court, since criminal cases differ (depending on each jurisdiction).
Litigation may also refer to the procedural rules according to law when it comes to the trial of civil cases. In Canada, these rules are called the rules of civil procedure, which may differ with every hierarchy or level of court. Related to these rules are also the rules on evidence.
Check out this video from the Canadian Bar Association - Alberta Branch on some tips and information to understand your civil claims matter:
If you’re looking for litigation lawyers to help you with your corporate commercial disputes, check out this directory of the best corporate commercial litigation lawyers as ranked by Lexpert.
Whatever your legal dispute may be, or the practice area it falls under, the roles of your litigation lawyer are found in the process of how these disputes are resolved by the court. Know that these will also be based on at what point you retained your litigation lawyer.
When you reach out to a litigation lawyer, one of their roles is to assess your case’s strengths and weaknesses, relying on your version of the facts.
After this assessment, your lawyer will decide whether to take your case or not. If they do, they will prepare your pleading.
This legal document will be filed in court and sent to the other party, with the assistance of your litigation lawyer. It narrates your complaint against the defendant, and the legal remedy that you’re asking from the court.
On the flip side, if you’re the defendant in the case, your litigation lawyer will prepare your counterstatements and set this out in your statement of defence.
Another important role of litigation lawyers is to help you look for evidence to support your claims (or your defence) before the court. Some examples can be:
Your lawyer should check whether these pieces of evidence are both admissible and credible when presented to the court.
When the trial proper comes, your litigation lawyer’s knowledge of court procedures and trial techniques can guide you through the process. This includes:
Sometimes, parties must first undergo alternative dispute resolution, such as mediation or arbitration, before the issue is tried in court. This will depend on the case, or the contract that’s under dispute.
In these situations, litigation lawyers can help their clients throughout this out-of-court process. They will ensure that the settlement is fair, that their client is not at the disadvantage, and that the procedure is properly carried out.
After trial, the court will render a decision, or an order, based on the application of the law and the evidence presented. However, the losing party has the right to appeal the decision to a higher court. A litigation lawyer can still be retained for that purpose.
If the judgment becomes final, the winning party will have it enforced against the losing one. But if there’s still problems at this point (e.g., when a debtor still refuses to pay according to the court order), a litigation lawyer will know how to handle such situations.
Having a lawyer at the preparation stage is important. If your case doesn’t allow self-representation, you will need a litigation lawyer. For example, cases covered by small claims court do not require clients to be represented by lawyers.
Here are some factors to consider whether you would need a litigator:
There's a variety of ways in which clients can choose a good litigator. These include:
When looking for litigation lawyers, there are some aspects that you may want to consider, according to litigators themselves. Here’s a list of what to look for when you want to hire a litigation lawyer:
Traits to look for when hiring a litigator include a successful track record in previous cases (though they don’t need to have won them all). It also includes a strong knowledge of the rules of evidence. However, choosing a litigation lawyer solely based on experience also has its downside.
Contrary to what many may believe, “the number of years of experience is not the most important factor,” writes Toronto lawyer Pulat Yunusov in his post How to choose a commercial litigation lawyer. A lawyer fresh out of law school can be appropriate for small claims files or as a second-in-command on a larger file, he writes, while a lawyer with 50 years of experience can be disastrous.
“A lawyer with five or more years of litigation experience should be able to handle most disputes” for a professional practice or a small business (e.g., with annual sales under $10 million) quite well.
“If you are choosing between a lawyer with 15 years of experience and five years of experience, the difference in quality could be zero but the difference in fees could be two- or threefold.” Lawyers tend to increase their fees with their seniority.
At the same time, Yunusov warns of litigators who are “dirt cheap” and who could drop your case after underquoting on it.
Aside from track record, there are other, less tangible characteristics that are also important, says Lawrence Ritchie. He is a litigation partner in Osler, Hoskin & Harcourt LLP in Toronto.
“A good litigator needs to empathize with their client’s situation,” he says. “They have to see things from their client’s point of view, and to understand not just the legal implications of the problems that they have, but also their overall non-legal needs and how they intersect.”
Second, he says, “a good litigator also has to have the capacity to understand the other side of the story; being a fierce advocate, but still understanding why the other side feels so intensely about the correctness of their position.”
Finally, a good litigator must be a good communicator and able to distill complicated feelings, emotions and situations “into a very understandable bite-size narrative, so that a judge or jury can understand it and can relate to it.”
To see what happens in civil litigation, watch this video:
For updates on litigation cases and court appointments, visit our Litigation page.
“Leading lawyers are civil to their opposing counsel,” writes Atrisha Lewis in her article Top 10 habits of a leading litigator. She is a McCarthy Tetrault LLP litigation partner and a Law Society of Ontario Bencher.
“Leading litigators opt to take opposing counsel on contentious matters for coffee rather than succumb to the temptation of writing a nasty reply email,” she writes. “Leading litigators often mentioned that some of their most exciting cases came from conflict referrals from a former opposing counsel.”
There is no one-size-fits-all for the type of litigator best suited to a particular case, Ritchie says.
“Some litigators are ferocious combatants, and certain cases require a tough stand; other cases require a softer and more empathetic touch to allow the court to understand the equities of the situation,” he notes.
“When someone’s looking for a litigator, they should understand the type of dispute it is and ultimately the message and the signal they want to convey to the judge.” Ritchie says that it can be “either a bulldog type of type of approach, or someone who can be helpful to the trier of fact, to be able to allow the judge or the jury to come to that ‘right decision.’”
Good litigation lawyers can tell their clients that their case is not a case at all, and most likely, they’re on the losing side. But how can you really know when to litigate or not? For this, a litigation lawyer’s assessment is important.
“Leading lawyers do not just join a group, they jump in and contribute,” Lewis says. “They leave an impression by working hard and engaging in the professional activities in which they participate.”
Leading litigators also develop their confidence and skills “by working up all their cases. They invest time understanding the facts and the law. Leading litigators are not overwhelmed by cost-benefit analysis; they focus on doing a good job for their clients every time.”
Howard Scher, a litigation lawyer himself, defines the five key traits of a litigator as:
“Effective litigation lawyers know that every move they make can potentially build or destroy their credibility, so they protect it at all costs.” They possess “an insatiable curiosity beyond law for a variety of topics [that lead] to innovative approaches and solutions” and “a warrior’s spirit.”
“They consider beating their opponents as secondary to the pursuit of finding an elegant trial solution... But like a warrior, they are respectfully persuasive, without being overbearing,” Scher writes.
Litigators are of big service to people who are caught in disputes that only the courts can resolve. With their knowledge of the law and the technicalities of a trial, they’re able to win (or at least defend) the cause of their clients with greater certainty.
At the end of the day, what’s important is that every party is represented by competent counsel, and that justice is served for the litigating parties.
Read our Special Report on the Top Litigation Boutiques for more on what makes the best litigation lawyer — straight from top-ranking lawyers themselves.
