What to do if you’re on the wrong end of a lawsuit
Newton’s Third Law of Motion states that for every action there is an equal and opposite reaction. This applies to almost all areas of life, including the law. Litigation, for example, is about more than a civil claim by a plaintiff or a criminal accusation by a prosecutor; the defendant, as the name suggests, may present a defense to refute or defeat the case against them, in whole or in part.
There are three basic types of defense. First, formal or procedural defenses; second, defenses based on the substance of the case; and third, an absolute defense that the case should never have been brought.
Procedural defenses relate to the validity of the litigation procedures, their form, and how to direct them, such as a submission that the court has no jurisdiction in the matter, or that summonses to attend are invalid. The main goal of such defenses is to end the case without a decision on its merits.
Substantive defenses relate to the facts of the case: For example, submitting that a debt being claimed by a plaintiff has in fact expired, or never existed.
An absolute defense is a submission by the defendant that the case should never have been brought in the first place, perhaps because the issue had previously been ruled on, or the claim was not legally permissible.
A key difference between a procedural defense and a substantive defense is that the former must be submitted, with legal arguments to support it, before there has been any consideration of the actual merits of the case. The right to lodge a procedural defense expires if the court has begun to consider the evidence. A ruling on procedure is independent of the case itself.
A substantive defense, on the other hand, may be submitted at any stage of the legal proceedings. Moreover, submitting one substantive defense does not remove the right to submit others later in the hearing.
Another key difference is that while a court’s upholding a procedural defense does not necessarily end the case, upholding a substantive defense brings the litigation to an end. Thus, a plaintiff whose case is ruled procedurally deficient in some way may correct the deficiencies and file the lawsuit again, but when a court rules against a plaintiff or prosecutor on the substance of the case, the same lawsuit or prosecution may not be filed again.
It is important for defendants in a lawsuit to understand all these possible defenses. Anyone unfortunate to find themselves sued or prosecuted should ensure that the case against them is procedurally sound, without defects, and that all possibilities for having the case dismissed are considered..
Dimah Talal Alsharif is a Saudi legal consultant, head of the health law department at the law firm of Majed Garoub and a member of the International Association of Lawyers. Twitter: @dimah_alsharif