What is litigation?
UPDATED: February 20, 2018
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Litigation is the term used to describe proceedings initiated between two opposing parties to enforce or defend a legal right. Litigation is typically settled by agreement between the parties, but may also be heard and decided by a jury or judge in court.
Contrary to popular belief, litigation is not simply another name for a lawsuit. Litigation 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.
Litigation Before the Lawsuit
Litigation begins the moment someone decides to formally enforce or defend his or her legal rights. In most cases, this happens the moment a party hires an attorney to represent their interests. Most attorneys engage in a variety of “pre-suit” litigation activities. These can include many things, from writing a letter on a client’s behalf called a demand letter, to demand that a party compensate a victim for economic or physical injury, to filing a Notice of Eviction with a local court. Pre-suit litigation is subject matter specific and varies depending on the circumstances surrounding a particular case. However, there are several steps in litigation that occur in nearly every case.
The first step in any litigation is investigation. Litigation is meaningless without information about the harm that occurred. Attorneys, and parties, often conduct extensive independent investigations into the facts and potential outcomes of a particular case prior to filing suit. A thorough pre-suit investigation focuses the issues in the case and satisfies the wronged party and his attorney that the harm was indeed caused by the potential defendant and that the law provides for a remedy. Knowing the facts of what occurred and how and why the law provides a remedy allows the wronged party to present the case to the party who caused the harm effectively. It is also the beginning of the wronged party's preparation to present the facts and law to a court of law.
Often, pre-suit litigation includes negotiations between the parties designed to avoid the cost and inconvenience of a formal lawsuit. The demand letter sent to the party who allegedly caused the harm is designed to convince the party that the wronged party, the plaintiff, has a basis for the claim and solid evidence and documentation of the money value of the harm caused, to give the defendant the opportunity to settle prior to expending large amounts of money in the ensuing litigation. Nonetheless, the plaintiff typically requests more than they believe the defendant will be willing to pay. The defendant often responds with an amount that is less than they may actually be willing to pay. Still, it isn't uncommon for a case to settle before or soon after a lawsuit is filed, for some amount in between what each party initially proposed. Insurance companies in particular are proponents of early resolution.
Alternative Dispute Resolution
Facilitation, mediation or arbitration—all forms of what is commonly referred to as “alternative dispute resolution” or “ADR”—sometimes take place pre-suit, or even in lieu of a formal lawsuit. Again, this is largely a cost-saving move. Facilitation and mediation are largely informal processes. Each side presents their case to an independent attorney or panel of attorneys. The facilitator or mediator then attempts to negotiate a settlement between the two sides. Occasionally, a facilitator or mediator will “put a number” on a case. This means that he has put forth a dollar value on the case that he believes is a reasonable amount to settle the matter. The parties then have a fixed time to accept or reject the number. If both parties accept, the case settles.
Arbitration is a more formal type of ADR. It is usually triggered by 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. Arbitration is basically a court case that is heard by a panel of attorneys or a single attorney instead of a judge or jury. It is less formal than litigation in the court system, and while not without cost, arbitration can often be cheaper than a court case due to the less stringent rules governing the proceeding.
Arbitration can sometimes occur at later phases in litigation, such as during the trial, when parties agree that they want to expedite the case or limit costs.
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 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 is the formal investigation of the facts of a lawsuit, consisting primarily of exchange of evidence and information between the plaintiff and defendant. During the discovery period, attorneys trade written discovery requests such as interrogatories (written questions), requests to produce documents and evidence, and requests for admission, which are requests that the opposing party admit certain facts of the case. Discovery often includes depositions, where attorneys formally ask questions of the parties and sometimes of third party witnesses. A deposition is a formal question and answer session that is conducted under oath and transcribed, which means copied word for word, by a court reporter for later use by both parties.
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. Motion practice generally involves short, targeted briefs and oral arguments presented to the presiding judge. Motions may include requests for more time for discovery or dispositive motions such as motions for summary judgment.
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. Courts prefer to have juries decide cases, and will find an “issue of fact”, or possible dispute requiring examination by a jury, whenever they can. Only when both the facts and the law converge to form an ironclad case against a party will a judge agree to dismiss it.
Once discovery has closed, all pre-trial motions have been heard and ADR is no longer desired, 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.
A trial is the formal presentation of a case to a trier of fact, which is usually a jury. On occasion, attorneys will agree to a bench trial, which means that the presiding judge will make the ultimate decision regarding liability. However, bench trials are rare in cases with any significant monetary value. In a jury trial, the judge’s job is to rule on matters of law, while the jury decides the fact issues in the case. The judge also ensures that case is litigated according to the rules of court.
During trial, each side takes turns presenting its case to the jury, with the plaintiff presenting first and the defendant then taking a turn defending against the plaintiff’s allegations. Each side has a chance to respond to any allegations raised in the opposing party’s argument occurring immediately prior. When both sides feel they’ve presented their case, they rest their cases. The parties then deliver closing arguments, and the judge instructs the jury regarding the laws upon which they are to make their decision. The jury then deliberates and returns a verdict, which is the decision in the case.
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. Litigation is an ongoing process, and just because a trial ends does not mean litigation does. Litigation is a process that can be quick and to the point or can persist for years. Other than the simplest of matters, it is necessary to retain an attorney to competently represent or defend a party's case during litigation.