What the day of a civil hearing actually looks like is often very different from what clients may expect.
Your Day in Court as a Civil Litigant
If you were to hire me to represent you in litigation, my job as your solicitor is not just to prepare your case for court. It is also to make sure that, when the day comes, you understand what is happening around you and why. Long years of experience accompanying clients who are involved in civil litigation to court have shown me that what happens on the day we finally get to a client’s hearing day can look very little like they may have imagined.
You may spend more time waiting than you do in the courtroom actually dealing with your case. You may go into the courtroom and come straight back out again. You may spend hours standing in a corridor with your legal team. And after all of that, your case may still settle before it is heard.
That is simply the reality of civil litigation. A hearing is not a single, uninterrupted courtroom scene. It is a working process involving court schedules, other cases, lawyers, witnesses, negotiations and, often, a great deal of waiting. That process is so familiar to practitioners, both the barristers and the solicitors, that it is easy for them to forget that what is self-evident to them is nothing of the sort for the clients. The children’s author E. Nesbit once said that the children in her books are so real because “I was a child myself and by some fortunate magic I remembered exactly how I used to feel and think about things”.
Clients are not children, but I find it useful to think about my own experiences some, considerable, years ago as a solicitor’s apprentice and how valuable I found it when my colleagues would explain what was happening around us while we were in the courts.
Arriving at Court
One of the things I find regularly surprises clients is that you can arrive at court without knowing exactly how the day is going to unfold.
You will know when and where to arrive, and you will meet your solicitor and your barrister when you get there. Depending on the nature of the case, this may be the first time you have met your barrister in person. They will, however, already have been briefed and will know your case, the evidence and the experts and their reports. Despite this, they will usually want to speak to you before the hearing begins and talk you through what is likely to happen during the day. This gives them a chance to hear you describe your own experiences first hand.
They may discuss who is appearing for the other side, what the immediate issues are and what the likely run of the day will be. But there is still a lot that can change.
The next surprise for a first time court attendee is that all of the lawyers, for all of that day’s cases in a particular list, go into the courtroom at the beginning of the morning and, from your point of view, it can look as though your case is about to start. Your case’s name is called out. The courtroom is full. Everyone involved in all the other cases listed that day is there too.
Then your barrister will say something briefly, which you may or may not be able to hear and everyone comes back out again.
I have had clients who are confused by this. They have gone to court because their case is listed for hearing. Their case has just been called. And now we are standing back outside in a corridor or hall.
This is why, no matter how many years experience I have as a solicitor, it’s important to remember that the nuts and bolts of the day’s litigation business are not automatically apparent to my clients. When we troop into the court at the start of the day and then all step out again, nothing has gone wrong. This is the callover. Before any hearings happen, the court is establishing which of the cases which are listed for that day are actually going ahead and how they are going to be managed that day, given the judges who are available to hear cases.
Waiting for Your Case to be Heard
Unless you are at the top of the list, clients should be aware that they may have to wait for a judge to come free to hear their case.
People sometimes imagine that when they go to court there will be a room somewhere where they sit privately with their solicitor and barrister until their case is called. That is not generally how it works.
You may be sitting or standing in the Round Hall or in a corridor in the Four Courts. Your legal team may be talking through the case while the legal team on the other side is standing a few metres away. You may be surrounded by other people waiting for entirely different cases to be heard.
From a client’s perspective, it can feel oddly exposed. You have spent a long time preparing for what may be a very important day, and now you are simply waiting in a public building with everyone else.
But at the same time, it can be helpful to let the client know that a lot may be happening while the client feels they are just waiting for their case to be called in front of a judge.
Barristers may be speaking to each other. Solicitors may be exchanging information. There may be Without Prejudice discussions about whether the case can be resolved. And, at any minute a judge may suddenly become available because another case has finished or settled.
So there can be a strange rhythm to the day. Nothing appears to be happening for a long period of time and then, suddenly, everything is happening at once.
I think it is worth knowing that in advance because otherwise the process can feel chaotic. There is a process, but much of it is not necessarily visible to the client.
Settling on the Steps of the Court
Another thing I find people are surprised by is how late in the process a case can settle.
You can have reached the point where everyone is in the court building, the barristers are ready, witnesses have arrived and the case is listed to be heard… and it can still settle.
In some ways, that is not surprising. By the time everyone has arrived at court, both sides have a much clearer picture of what they are dealing with. The witnesses are there. The lawyers are there. Everyone knows that if an agreement is not reached, the next step is the hearing. That can create a very different environment for negotiations.
So you may spend the morning waiting while your legal team is also trying to establish whether there is any realistic basis on which the case can be resolved.
This is what is meant by the phrase “settling on the steps of the court.”
From your point of view, that last minute element can be frustrating. You have spent months preparing to go to court, you have finally arrived for your day in court, and now your solicitor and barrister are telling you that there is an offer to consider. It is best to just let that frustration pass through you, because an amicable settlement is still preferable to occupying the court’s time, no matter when the offer arrives.
If you decide to accept the offer, the terms of the settlement will be agreed and the case will not proceed to a hearing. Depending on the terms agreed, the court may then be asked to make an order reflecting that agreement.
If you do not accept the offer, the case continues. If no agreement can be reached, you will go into court and the hearing will begin.
Giving Evidence in Court
If the case does proceed, the plaintiff will usually be the first witness. If this is you, your barrister will take you through your evidence and ask you to tell the court what happened to you. Then the other side’s barrister will cross-examine you.
I think it is important to be honest with clients about what that can feel like. Being cross-examined by senior counsel in open court can be one of the more stressful experiences in a person’s life.
That does not mean anyone is going to be shouting at you or behaving unprofessionally. But opposing counsel’s job is to test your evidence. They are looking for weaknesses in your case. They may ask questions that are uncomfortable to answer. And you should remember that you are answering them in court, in front of a judge.
Some people will be perfectly comfortable with that. They will relish having the chance to speak about what happened to them. Others will find the prospect of giving evidence and being cross-examined extremely difficult. Neither is wrong, but it is something you need to discuss with your solicitor and think about before the hearing day. I’ve had clients who did not like the idea of the centre of attention, but who nonetheless were able to prepare themselves before hearing because they were committed to speaking their truth.
The Rest of the Hearing
Once you have given your evidence, other witnesses may be called. Depending on the case, that may include medical experts, engineers or other specialists. Their reports will have been prepared in advance, but the court will still hear the evidence needed to prove your case, and the other side will have the opportunity to challenge it.
The number of witnesses is one of the things that determines how long a hearing will take. A relatively straightforward case with a small number of witnesses may move through the evidence quite quickly. A case involving several experts and a significant dispute about what happened may take much longer.
Eventually, the judge will have heard the evidence from both sides and the legal submissions that follow.
Then the judge decides. That may happen immediately, or the judge may reserve judgment. Reserving judgement means the judge has finished hearing all the evidence and arguments in a case, but is opting to deliver a decision at a later date.
A Day in Court is Only Part of the Process
Just as a civil case does not begin when you walk into the courtroom, it does not necessarily end when you walk out again. There may have been months or years of work before you get there, and there will still be things to do afterwards.
Nevertheless, for you as the plaintiff, the day you go to court can feel like the most significant part of the litigation process. It may be the day you finally give your account of what happened and hear the other side challenge it. It may be the day your case is settled or the day a judge gives their decision.
Understanding in advance what is likely to happen is an important part of being prepared for the day you finally get to court and feeling confident about what lies ahead. There will still be things you cannot predict, but you should not arrive at court without understanding the process you are about to go through.
