Litigation – “Guide for the Perplexed” - presenting the litigation process in Israeli Courts
By Adv. Moshe Kahn
“Litigation is the pursuit of practical ends, not a game of chess” (Felix Frankfurter, Justice of the United States Supreme Court, 1882-1965)
Litigation is the common name for the profession (some would say art) of pleading in court. Whether you are a plaintiff who has decided to file a civil suit against a defendant who owes you money or who has committed a civil wrong against you, or whether you are the defendant who has been served with a statement of claim, and although you are both probably represented by leading attorneys who specialize in representing litigants in Israeli courts, your knowledge of the principles and procedures of the legal process in Israel is invaluable.
The civil and commercial litigation proceedings in Israel are complex and, in most cases, the proceedings progress slowly.
There are many cases in which the plaintiff won his lawsuit after a lengthy period of time but his victory in the lawsuit was no longer relevant due to the changes made in the field of business in which he is engaged. Therefore, the element of time is a strategic consideration of the utmost importance which needs to be considered prior to institute legal proceedings.
If you ultimately decide to institute any legal proceeding in Israel, it is important to be equipped with a healthy dose of patience and forbearance throughout the period of the proceedings.
However, there are exceptional cases in which the litigant will receive speedy relief from the Israeli court, such as an interim injunction, etc. but these are usually temporary remedies that form part of the main proceeding which, as aforesaid, is lengthy.
The phenomenon of the prolonged legal process is not unique to the Israeli legal system and is fairly common in most Western countries. Underlying this phenomenon is the principle that every person is entitled to his day in court, and that not only must justice be done, but it must also be seen to be done.
Besides the duration of the proceedings, a further aspect that needs to be treated with the utmost seriousness is the complex set of rules and regulations constituting the rules of the Israeli legal playground. For illustration purposes only, Israel has many hundreds of regulations governing the manner of conducting a civil proceeding in court, some of which branch into many subsections.
Due to the multitude of procedural rules and regulations in Israel, it is extremely important for an Israeli lawyer to be familiar with the various proceedings since, in many cases, the lawyer may have the upper hand or lose the case for his client solely due to procedural determinations which were not given proper emphasis by him.
Preliminary Stage – First Meeting with the Lawyers
During the stage prior to filing a lawsuit, the clients meet with an Israeli attorney who specializes in litigation. This is the first direct contact between the lawyer and the client. At this stage, besides the important personal acquaintance between the service provider and the client, this meeting has several main objectives:
From the client’s perspective – This is the chance to become acquainted with the lawyer representing you, to receive an impression of him and to present him with the facts of the problem facing you, to provide him with relevant documents supporting your version, and to tell him who the relevant parties of the case are. This is also the stage in which you receive relevant information and a preliminary opinion from the lawyer regarding representation in court.
From the litigation lawyer’s perspective – First and foremost, at this meeting, the commercial litigation lawyer becomes familiar with you, your desires, and your goals. The lawyer makes an initial assessment of the legal grounds and translates the facts of the matter into a legal case, while “separating the wheat from the chaff”.
There may be instances, which we will not go into detail here, in which the lawyer will advise the client at the end of the first meeting not to file a lawsuit and to follow a different path such as arbitration or mediation in Israel or even to end the potential lawsuit by way of settlement, where the chances of the lawsuit are low and since representation in court involves considerable expenses.
Thus, this first direct meeting constitutes the first significant link in the potential legal process and is critical to the continuation of the process since it forms the basis of the client’s version of the matter.
First Stage –Filing the Main Pleadings
After the initial meeting where the parties became acquainted with each other, the lawyer will examine the issue at hand “through legal eyes”, and will decide whether there is any point in filing a statement of claim with the court. In this regard, it should be noted that in the commercial legal world, extralegal considerations are important, such as economic – business considerations, and, therefore, it is advisable for the client to engage with a lawyer who is familiar with the commercial world in addition to being familiar with the legal field. A civil lawyer (with business orientation) will, at this stage, contemplate a range of possible considerations and will outline a strategy for conducting the case.
If the lawyer decides that a statement of claim should be filed with the court, the client will be asked to collect all of the documents in his possession that have not yet been provided to the lawyer, in order for the latter to draft a statement of claim.
A further consideration that the lawyer needs to consider is the type of procedure under which the statement of claim will be filed. As aforesaid, the various legal procedures prescribe different types of proceedings, each having its specific characteristics, for different types of cases. Legal representation in court is of a different nature in each case.
Israel also has clear rules with respect to drafting a statement of claim, from which the lawyer may not deviate and in this regard also, the skills and experience of the lawyer are extremely important. For example, in many cases, amending a statement of claim which was drafted inattentively and without encompassing all of the client’s claims, will not be permitted at a later stage (unless the court approves the amendment, taking into consideration the parties’ conduct prior to the application to amend and the stage at which the application to amend is filed).
In most cases, the party being sued is given 30 days from the date of filing the statement of claim, to file a statement of defense. There are specific instances in which this period is extended to 45 days.
After the filing of the statement of defense on behalf of the defendant, the plaintiff has the right to file a counterplea within 15 days, in which the plaintiff will address the points raised in the statement of defense. An imperative condition is that the plaintiff should not be allowed to raise new claims in the counterplea which were not raised in the statement of claim.
Other pleadings
Filing a counterclaim in Israeli Court
Often the defendant has a counter cause of action against the plaintiff.
In such a case, the defendant may file a counterclaim against the plaintiff.
Filing a third party notice
There are instances in which the defendant may issue a notice to a third party, in which the defendant argues that he is entitled to compensation by such third party for any relief awarded against him, or that the Third-party himself is directly liable to the plaintiff.
In addition to these two possibilities, all other civil law proceedings require a thorough knowledge of the procedures.
Beyond the legal aspect, these possibilities form an additional strategic tool in the toolbox of the litigation attorneys in Israel, when analyzing the client’s situation on a certain issue. The lawyer may use these tools, which could put pressure on the opposing party, to clarify that alongside his chances of winning the lawsuit against his client, he is also exposed to real risks.
The Early Stage – purely procedural technical stage or crucial stage?
Normally, after filing the main pleadings, the parties to the dispute will meet for the first time in court for a pretrial hearing. Although the parties do not have to attend this hearing, often the judge will order the parties to attend and will even ask them questions during the hearing in the hope of resolving the dispute already during that hearing.
The main purpose of the pretrial hearing is to clarify legal issues and the manner of litigating them in order to optimize, simplify, shorten and accelerate the trial, and to discuss the possibility of a settlement between the parties. In many cases, at this stage, the parties will be referred to mediation outside of court.
Here also, as in all stages of the trial, the experience of the civil lawyer in advising the client on the chances of success and risks involved in the question of whether to accept a settlement or to turn to mediation, is extremely valuable.
If the parties fail to resolve the dispute, the Israeli court will set dates for hearing the case – completing the discovery of documents between the parties, submitting affidavits, and a date for the evidentiary hearing at which the persons who submitted affidavits will be questioned with respect to the dispute.
Discovery of Documents Process
During the discovery process, forming part of the early stage, the parties must disclose all their cards to each other to enable proper preparation for the evidence stage. Israeli courts are clear on these rules in order to prevent surprising an opposing party during the evidence stage with documents with respect to which they did not express their intention to use prior thereto. The familiar expression, which comes from a completely different area, is the phrase “open deck of cards”.
As a result of this duty, the party, and of course the representing lawyer, needs to carefully consider the degree of necessity of each document to prove their case since overexposure of documents may actually benefit the other party. The experience and skills of the lawyer are measured also during this stage, which many lawyers tend to underestimate.
As part of the discovery stage, a party may serve the opposing party with interrogatories (list of questions). The purpose of the interrogatories is to receive admissions from which the answering party cannot later diverge, and these answers may benefit the asking party during the evidence stage.
The success of the interrogatories is also dependent to a large extent on the skills of the lawyer drafting the questions.
For example, in the case of a car accident, there is no point in asking the opposing party a question such as: Did you not drive your car on 1.1.2010 in the early hours from Jerusalem to Tel Aviv?”
Obviously, in this case, the answering party may simply answer “no” without the asking party knowing what exactly the “no” refers to, whether it refers to the date of the drive, whether it refers to the early hours, or whether it refers to Jerusalem, etc.
During the discovery of documents, the clients need to be extremely patient, since many applications dealing with some or other document may be filed with the court by both parties. The purpose of these applications may seem unclear to a bystander. However, at this stage, the lawyers are fighting a Sisyphean battle in order to prepare their clients for the evidence stage, whilst obtaining the maximum possible amount of information that may lead to a victory in the case. It should be remembered that in the field of litigation, “God is in the details” and many cases are decided based on a single document that tips the scale in favor of a particular party and puts the other party to shame.
The stage of filing Affidavits of Evidence-in-Chief
After the pretrial stage and the discovery process, the parties submit affidavits. Unlike a statement of claim or statement of defense, in the affidavit each party details only the facts known to him from personal knowledge (unlike affidavits in the preliminary stage in which he may also declare facts to the best of his belief). The party must attach to the affidavit of evidence-in-chief all of the documents which he intends to submit during the evidence stage.
In general, the filing of the affidavit is intended to save judicial time, since it removes the need for examination in chief during the evidence stage in court, as shall be explained below.
A party may also be supported by witnesses who will also be required to submit an affidavit describing a certain occurrence relating to the facts of the dispute.
In addition to filing affidavits, a party may attach an expert opinion to support his claims. For example, in a dispute relating to a real estate transaction, often the parties will attach an appraiser’s opinion regarding the property involved in the transaction in order to support their claims. This is so also in matters of medicine, economics, accounting, engineering, and any other matter of an expert nature.
In terms of the work of the civil law, this is a particularly critical stage. The lawyer needs to piece together all of the information given to him by his client into one clear and coherent story, free of contradictions and misunderstandings. The weight of an affidavit that is written clearly and coherently is significant: often the court will set a further pretrial hearing after the parties’ affidavits have already been submitted to it. In this hearing, the parties may receive an impression of which way the winds are blowing and whether any of them should withdraw from their claim or reach a compromise. Thus, the manner of writing the affidavit directly affects the chances of the plaintiff and/or the defendant to win the case, without him even testifying in court.
The most significant stage – the Evidence Stage
Preparation for Questioning
Prior to the date set for the evidentiary hearing, the civil lawyer will meet with his client and with any other person who has given an affidavit of evidence-in-chief or opinion to support his client, in order to prepare them for cross-examination. This meeting is of utmost importance since a lawyer who is proficient in the secrets of cross-examination will in most cases be able to cast a negative light on a party who is not properly prepared, and may cause him to say things that could be too his detriment when writing the summaries and when the court renders its decision. In this regard, even experts who are considered a trusted authority in their field of practice, are often embarrassed on the witness stand and their opinions are fundamentally undermined.
At this meeting, the lawyer will conduct a cross-examination simulation, in which he will try to demonstrate to his client what he is expected to feel on the witness stand. The lawyer will go over the affidavit with his client and he will draw his client’s attention to nuances that may arise from the affidavit and the facts on which his client may be questioned.
The day before the Evidentiary Hearing
It is important to understand that for lawyers engaged in litigation, the evidentiary hearing is the peak of the trial. Therefore, just as lawyers should be in a sharp and refreshed state when arriving at the hearing, so too should the litigant be ready and attentive when arriving in court. Beyond the professional preparation for the hearing, it is important to rest well the day before the hearing in order to be calm and relaxed during cross-examination.
Evidentiary Hearing
After submitting the affidavits, the litigants and anyone who has given an affidavit of evidence-in-chief and an expert opinion will be summoned to an evidentiary hearing. At this hearing, all the deponents will be questioned on their affidavits in cross-examination by the lawyer of the opposing party. The presence of the deponents and experts is mandatory.
In the first stage of the hearing, the prosecution witnesses are questioned and thereafter the defense witnesses are questioned. In many cases, one evidentiary hearing is not sufficient and the Israeli court will schedule another date for hearing evidence.
The evidentiary hearing is the most significant stage of the case, and the art of cross-examination is the main weapon under the Israeli legal system for the discovery of truth. Cross-examination has been called the ultimate test of the litigator’s skill, requiring him to be exceptionally familiar with the version of the party being questioned and the documents on which he relies while cross-checking all of the information in order to find cracks in his testimony.
Keep in mind that in cross-examining, the lawyers are not subject to many restrictions. Apart from their professional familiarity with the case, litigators specialize in throwing the party being questioned off balance. For example, the lawyer may ask embarrassing, offensive, or provocative questions in order to throw the party off balance and cause him to respond instinctively from a place of emotion rather than judiciously. The lawyer of the party being questioned may object to a particular question and the judge will decide whether the question is permissible or not.
Every word of the party being questioned is recorded in a court transcript and may later be used as a sword or as a shield in proving the claims of the parties. Furthermore, in cross-examining a party and the witnesses on his behalf, experienced lawyers may dwell on facts that may appear to be trivial. Therefore, the party being questioned needs to be completely focused and think carefully before answering a question directed at him. A party who is ready for questioning will be able to internalize this even before questioning begins and will pay attention also to the tone in which he answers the questions since the court takes this into consideration also.
Summation Stage
After both parties have completed the presentation of their evidence, the Israeli court will order each party to present the entirety of his claims. At this point, each party will use certain statements made by the opposing party to his benefit in order to prove his claims, and will also refer to legal references and rulings by the District and Supreme Courts.
In principle, the summation stage should be conducted orally but in many cases, especially in commercial litigation, which by its nature is complex, the court orders the parties to submit written summations, sometimes limiting the number of pages which each party may submit. The plaintiff presents his summation first, then the defendant, and finally the plaintiff may respond to the defendant’s summation.
Judgment
After many months (at best), the legal proceedings entered into by the parties come to an end. In the judgment, the judge analyzes the issues that are in dispute between the parties and determines which and whose version seems to be more sensible and reliable, while using the evidentiary material placed before him.
The court determines the relief awarded to the party who has won the case. In addition, the court stipulates court costs, including lawyers’ fees, which the losing party is typically ordered to pay.
Over but not done with – Appeal (?)
Sometimes the judgment rendered by the Israeli court may be “attacked” by a higher court. Here also, the role of the losing party’s lawyer is important – he needs to analyze the judgment and identify points of weakness therein that allow for the filing of an appeal while meeting the tight time frame prescribed in the regulations.
As for the successful party – all that is left for him to do is ensure the execution of the judgment. If the judgment is not enforced, he will need to approach the Israeli enforcement and collection authority (Execution Office) in order to enforce the judgment.
October 2015
* Adv. Moshe Kahn specializes in Business Law. He is licensed to practice law both in Israel and in the U.S. and is the founder of the Moshe Kahn Advocates law firm in Tel Aviv
