It happens. You’re going along in life, minding your own business; perhaps a few months ago you quit your job in frustration, or there was that tradesman who did work you weren’t happy with. You go to your mailbox and suddenly your heart sinks.

There’s a letter in there threatening legal action, or, even worse, one bearing the logo of the Ministry of Justice, or your local equivalent.

The Kiwi Homesteaders aren’t immune. This was, indeed, one of our challenges for the year. But here are some survival tips.

1. Don’t lose your head. (Also known as, “Don’t Panic.”) In retrospect, this probably isn’t a huge surprise to you. You knew there was someone unhappy with you. You haven’t lost the game at the mere sight of the other team entering the field.
2. Pray. If you already have a routine of prayer, excellent! give the matter to God. If you don’t, now’s a great time to start. Give the matter to God anyway.
3. Don’t assume you’re in the wrong. In the West, we think lawsuits are so tedious and costly to engage in that no-one who isn’t justifiably certain of winning would ever try one. Wrong. People file lawsuits ranging from the, “Close, but no banana,” to the completely frivolous and utterly devoid of legal merit all the time.
4. Don’t assume you’re in the right. You need the humility to see things from the other fellow’s point of view, and from that of the judge.
5. Keep everything. You were doing this anyway, weren’t you? Quotes. Contracts. Bills of Materials. Invoices. Receipts. Payment confirmations. Bank statements. And of course any time you agreed something verbally you sent a follow-up email stating what you thought you agreed to and inviting the other fellow to reply if he thought different, and you kept (and responded to in a timely manner) any such replies you received. Always remember: “It’s not what you know, it’s what you can prove.”
6. Do your homework #1. Research the law you’re going to rely on. (References here are to New Zealand law; adjust as necessary for your own jurisdiction.) The most common area is a dispute over goods and services; so look at the Consumer Guarantees Act 1993, the Fair Trading Act 1986, the Contract and Commercial Law Act 2017, and (if this was a construction contract) the Construction Contracts Act 2002. If it’s an employment matter, it might be the Employment Relations Act 2000. And so forth. If it has been a long time since the matter arose, consider whether the statute of limitations applies: plaintiffs are expected not to muck around.
7. Make sure you follow all the steps. Some laws, like the Construction Contracts Act, set forth particular steps you have to carry out (e.g., a payment schedule). Not following the steps won’t necessarily ruin your case, but following them in good faith and within the expected time period will certainly help you.
8. Possession is nine-tenths of the law. For example, if you really think you don’t have to pay, because the job was done improperly and the supplier is chasing you for the money, don’t pay. But do pay as much as you think you should. It will make you look better. Also, use common sense. If for example your mechanic is sitting on your $10,000 car because you’re not paying a $1,000 bill, you’re probably better off paying the bill and getting the car back, then chasing him up later if you still think it worthwhile. You won’t be able to recover extra costs that you incur solely due to your own stubbornness.
9. Do your homework #2. Get your facts in order. If you’re talking about work done improperly, take photos and the like. Get opinions from experts. All this is your homework. The judge won’t do it for you. Remember that in civil matters the standard of proof is “more likely than not” which is a pretty low bar to have to meet.
10. Make sure you give the other party your case and your evidence. Usually, you are expected to do this at least a certain time before the hearing. The only time this doesn’t apply is when the onus of proving the case lies entirely with the other party. This rarely applies in civil matters, but we have an example below. If you don’t do this, you can be sure you’ll waste time and more uncertainty on adjournments while the other party “considers your new evidence”.
11. Gain the sympathy of the Court. This is not evil psychological manipulation. It can be, and often is, as simple as showing up on time, properly dressed, and treating the judge with respect and good manners.
12. Play the ball, not the man. In other words, you’re trying to help the judge get to the truth, not slagging off your opponent. Yes, if your opponent’s conduct or attitude at the time confused or misled you as to what your obligations were, bring that up, but only to the extent that it’s relevant.
13. Be prepared to settle. This could be an out-of-court settlement, or it could be an agreement negotiated in the hearing and signed off by the judge. If the other party offers you 99% of what you were after, and it doesn’t come with all manner of uncomfortable conditions attached, you might choose to take it. Do you think you’re likely to do better if the judge makes the decision?
14. On the other hand, don’t settle if you think a settlement is being extorted from you. This is a tricky one: parties and judges can and do use the uncertainty inherent in the judgement process (“you don’t know what the judge will decide; this could be the best offer you’ll ever get”) to encourage you to take a settlement. But if you think the settlement being offered is humiliating and degrading to you, don’t take it. This is equivalent to the logic of, “Don’t quit; make them fire you.” Your case for an appeal is stronger if you don’t voluntarily agree to be mistreated.
15. Pray. Give the hearing to God.
16. Don’t lose your head. The actual hearing is just a discussion. You’re not proving your worth as a human being, and you’re not having to perform for the public gallery. Don’t worry.

Example: Motor vehicle accident

This is the example I referred to, when the onus is on the plaintiff to prove their case. At one point several years ago, Starfish was sent a letter telling her that her vehicle was involved in a hit-and-run accident, that the victim was obliged to rent a car from the firm sending the letter, and that if she didn’t pay them some hundreds of dollars they would refer the matter to their “external lawyers”.

A little digging revealed that the offending vehicle was a make, model and number plate that neither of us had ever had anything to do with. We of course couldn’t prove that, according to the rule of logic and evidence that you can’t prove a negative, but that meant they had the burden of proof, and they had not a shred of evidence to support their contention. Unsurprisingly, we never received a notice of hearing.