Litigation is the term used to describe proceedings initiated between two or more opposing parties to enforce or defend a legal right. Litigation is not just another name for a lawsuit as it includes any number of activities before, during, and after a lawsuit to enforce a legal right. In addition to the actual lawsuit, pre-suit negotiations, arbitrations, facilitations and appeals may also be part of the litigation process.
Civil litigation is challenging and diverse. Since civil litigation is an adversarial process, the attorneys and paralegals must be willing to assume an oppositional position and embrace conflict and controversy.
The pre-suit litigation process includes many things, from writing a letter on a client’s behalf called a demand letter, to demanding that a party compensate a victim. Litigation is subject matter specific and varies depending on the circumstances surrounding a particular case. There are several steps in litigation that occur in nearly every case, the first step being investigation. Attorneys often conduct extensive investigations into the facts and potential outcomes of a case prior to filing suit. Knowing the facts of what occurred and how and why the law provides a remedy allows the wronged party to present the case in the most effective manner.
Negotiations are tried first to avoid the cost and inconvenience of a formal lawsuit. Demand letters and responses are evaluated during this process and it isn’t uncommon for a case to settle before or soon after a lawsuit is filed. However it is also common in particularly high stakes legal matters for cases to run on for many years. Alternative Dispute Resolution
- Mediation or arbitration sometimes take place pre-suit or instead of a formal lawsuit. This can be a cost-saving alternative. For more information about mediation click here.
- Arbitration is a more formal type of Alternative Dispute Resolution. It may come from a contractual provision, where the parties or one of the parties have signed an agreement stating they would accept arbitration in the event of a dispute. It is less formal than litigation in the court system, and while not without cost, arbitration can often be less expensive than a court case due to the less stringent rules governing the proceeding.
Litigating the Lawsuit
The formal lawsuit is what most people think of when they hear the term litigation. A lawsuit involves a plaintiff filing a formal Complaint with the appropriate court, and then serving a copy upon a defendant to provide them notice of the impending court case. The defendant then files an Answer or other responsive pleading within a prescribed amount of time, and the lawsuit commences. The rules involving formal lawsuits vary from city to city and state to state. Suffice it to say that litigation of a formal lawsuit generally involves three stages: Discovery, Trial, and Post-Trial.
- Discovery The formal investigation of the facts of a lawsuit, consisting primarily of exchange of evidence and information between the plaintiff and defendant. Attorneys also engage in motion practice during the discovery period. Motion practice is the mechanism where a party, through their attorney, petitions the court to make a decision regarding a disputed aspect of the case. Dispositive motions are motions asking the court to rule in a party’s favor without trial. Dispositive Motions are generally long and complex affairs, as they must show that under no circumstances can any development in the facts support any result other than the dismissal of the case.
- Trial Once discovery has closed, all pre-trial motions have been heard and Alternative Dispute Resolution is no longer an option, a case moves towards trial. The vast majority of litigation never reaches the trial stage, and with good reason. Trials are expensive and uncertain propositions and are something of a gamble for both parties.
- Post-Trial Litigation Litigation continues even after a verdict is rendered. Often the form or manner in which a monetary award is collected is disputed or subject to negotiation. Or, the losing party is unhappy with the decision and may find a basis for an appeal to a higher court. Even if both parties accept the jury’s verdict, there are still motions and orders and hearings that are necessary to properly close a case.
At Solinger Law all of your legal options will be explored fully. With over 35 years of experience litigating cases and having presided over hundreds of binding and non-binding arbitrations, the path for your best result will be completely explored, explained and vetted with you. Always a consideration is the psychological wellbeing of our clients. All Solinger Law evaluations explore with you the demands that conflict and litigation create in your life.