Plain Guide to Litigation: The hearing and subsequent matters
We do not require “opening statements” from each side but in the Land Court we may very well start by trying to clarify what the real issues are and this means you will need to be ready to tell the Court what you see as the main issues. You may find that opening questions from the Court will open your eyes to some aspect that you had not fully considered. If so, the Court would usually agree to take a break to allow you to think about it. Such a break is usually called an “adjournment”.
You must not be put off by any questions from the court. The aim is simply to make you think clearly about particular issues and help to ensure that your arguments are properly understood. Whatever you may fear, questions do not show that the court has set its mind against your argument. As we have already said, even when the court uses an expression such as saying that you “face an uphill battle”, this is no more than a warning that you will have to present proper arguments on a particular point. Courts are very used to forming a preliminary impression on a particular point but coming to an opposite view once they have heard all the arguments. They are very well aware that cases often turn on points which are not clear on first reading. They do not attempt to reach a final decision until all the relevant evidence has been heard and all relevant arguments have been considered.
Parties may be asked if they can agree which side should start. It is usually for the person making the application to the court to start by leading his evidence. But sometimes it is clear that the real issues will be more easily tackled if the respondent goes first. A party litigant may well find it easier if his opponent starts. That leaves him free to concentrate on the points which are important to him without having to worry too much about legal formalities.
© 2011, Scottish Land Court