Litigation

When a person, business, or entity enters into a lawsuit, whether they have filed the lawsuit, or are responding to it, they are entering into a process known as “litigation.” Lawsuits or “actions” are brought before the court for the purpose of enforcing a particular right. The process of litigation is actually a series of steps taken to resolve the matter, whether through negotiations toward a settlement, or a court trial. To explore this concept, consider the following litigation definition.

Definition of Litigation

Noun

  1. A lawsuit
  2. The act or process of bringing or contesting a legal action in court

Verb

  1. To contest or engage in legal proceedings

Origin

1560-70 Latin litigation

Litigation Process

Any dispute between people, businesses, or other entities has the potential to result in the filing of a lawsuit. These lawsuits progress in an orderly manner through a number of steps, including:

  1. Filing of a Complaint / Answer to Complaint
  2. Pleadings
  3. Discovery
  4. Settlement Conferences
  5. Trial
  6. Appeal (possibly)

The litigation process is not a quick road to settlement of disputes, as it has the potential to drag on for weeks, months, or even years. The parties to any lawsuit can certainly come to an agreement, or “settle” the matter at any point during the litigation process.

Complaint

Litigation begins when one party to a dispute (the “Plaintiff”) files a document with the court called a “Complaint.” The Complaint identifies all the parties to the dispute on both sides, briefly describes the facts of the disputed matter, outlines the pertinent legal claims, and specifies the damages caused by the acts or omissions of the opposing party, called the “Defendant.” The Plaintiff must provide a copy of the Complaint filed with the court to the Defendant.

Answer

When a Defendant receives a copy of the lawsuit filed against him, he must provide a response to the allegations made in the Complaint to the court. This response is called an “Answer.” There are strict timelines for service of the Complaint on the Defendant, as well as the filing of the Defendant’s Answer to the Complaint with the court.

Pleadings

“Pleadings” is a legal term that encompasses all written legal documents filed with the court, or served on the opposing party, during litigation. Technically, the Complaint is the first pleading filed in any lawsuit, the Answer the second pleading. Other types of documents considered pleadings include petitions, motions, declarations, requests for hearings, and other documents.

Discovery

Preparing a case in litigation involves the exchange of information between the parties. This process is called “Discovery,” and is often the longest part of any litigation. From the time immediately following the filing of a lawsuit until just before the trial, the parties ask one another to provide facts, evidence, and documents related to the case. This gathering of information is done through formal, written questions called “interrogatories,” requests for the opposing party to admit or deny specific facts (“request for admissions”), and requests for copies of specific documents and other items (“request for production of documents”).

Once again, there are very strict deadlines on responding to these formal requests, and failure to adhere to that timeline may result in a significant loss of rights in the process, including the inability to bring up certain facts, issues, and evidence at trial.

Settlement Conference

A settlement conference, often referred to as a “meet and confer” by the court and attorneys, is a requirement before the judge will hear the matter in many jurisdictions. In this meeting, the parties and/or their attorneys meet in an attempt to resolve some or all of the matters in the litigation. This can be beneficial in at least partially resolving the matter, reducing the time the matter will be before the court. Settlement conferences are particularly useful in family law matters and domestic relations disputes, such as child custody and visitation matters, and family support issues which are inherently heavy with emotion.

Trial

The trial on a civil lawsuit may take place before a jury, or be decided solely by the judge (called a “bench trial”). Just prior to trial, both parties submit a pleading called a “Trial Brief” to let the court know they are ready to proceed to trial. The trial brief provides an outline of the steps taken and procedures followed prior to that time, as well as listing the evidence to be used during the trial.

During the trial, each party presents their evidence and questions witnesses in an attempt to make their case convincing. In every trial, because the Plaintiff has the burden of proving his case, the Plaintiff goes first in presenting evidence and witnesses. After all the evidence has been presented, each party gives a closing argument, summing up the matter in a tidy, easy to understand statement.

The judge then gives instructions to the jury about how the law should be applied to the case, and they move to a conference room to deliberate and reach a verdict. In the case of a bench trial, the judge simply retires to his or her chambers to consider all the evidence before reaching a verdict.

Appeal

A party who is unhappy with the verdict or result of a trial may appeal to a higher court to review the proceeding. In an appeal the parties, rather than appearing at another court, present their arguments in pleadings called “briefs,” along with a record of the evidence presented at the original trial. It is important to know that an appellate court only reviews cases for legal error, and generally will not review or override any “findings of fact” made by the lower court or jury.

In a written document called an “opinion,” the appellate court judge informs the parties of his decision. The court will “affirm” the verdict if it finds no mistake or error in the proceedings. If there was an error, the appellate court judge may reverse the previous verdict or order, and order that a new trial be conducted on the matter.

Litigation Support

Litigation can often entail the management of a great deal of information. Litigation support is the joining of technology and project management. Litigation support specialists generally collect, analyze, and keep this information organized through the use of computers and other means. Specifically, litigation support is responsible for identifying, collecting, processing, and preserving paper and electronic documents, as well as audio and visual recordings, and other evidence. This information must be kept in order to be presented at a moment’s notice at trial.

Litigation Hold

A litigation hold is a written instruction for the custodian or keeper of documents, electronically stored information, or other evidence to preserve all such information that may be related to a legal action, or potential legal action, involving the company or agency. Such a company or agency has a duty to preserve such records when it learns of pending litigation, but an attorney for any party to the dispute may issue a litigation hold, also known as a “preservation order,” “hold order,” or “stop destruction request,” in order to help ensure all evidence will be available during the discovery process prior to trial.

Failure to comply with a litigation hold has been found to be “grossly negligent” by the courts, and may result in the party being sanctioned for spoliation of evidence.

Types of Litigation

The term “litigation” refers to the process of seeking a resolution of a dispute through a civil lawsuit. There are many types of lawsuits filed in the United States every day, each with its own specialized subject matter.

  • Civil Litigation. A legal dispute between parties in which money damages, or an order requiring the performance of a specific act. Civil litigation does not seek criminal sanctions.
  • Business Litigation. A legal dispute regarding specific business transactions, also referred to as “commercial litigation.”
  • Patent Litigation. A legal dispute arising out of a patent infringement.
  • Securities Litigation. A legal civil dispute arising out of securities fraud. This is a subsection of “business litigation,” requiring a very specialized knowledge and skill set. In addition, securities litigation often has a criminal counterpart, as securities fraud is considered a serious crime.
  • Complex Litigation. A case with both complex legal and case management challenges due to the complicated legal issues, the large quantity of documentation, large number of parties, or interdependency on other related legal actions. Complex litigation matters often require creative solutions to keep costs down and encourage effective decision-making by the court, the attorneys, and all parties involved.

The Difference Between a Litigation Attorney and Trial Lawyer

While many people think the two terms “litigation attorney” and “trial lawyer” are interchangeable, the truth is these are two different legal professionals. A litigation attorney generally handles a case from the initial interview of the client, through the preliminary matters, then conducting the trial of the case. A litigation attorney who does not have trial skills and experience often brings in a trial lawyer (or “trial attorney”) at the last minute to conduct the trial. Conducting a trial, leading a jury and the court toward the desired conclusion, takes a very specific skill set.

Another very important distinction is the litigation or trial attorney’s knowledge of the litigation subject. Although an attorney may describe himself as a “civil litigation attorney,” he is not necessarily a real estate “trial attorney.” It is very important that any attorney trying a case be experienced in trying that specific type of case.

Arbitration as Alternative Dispute Resolution

Offered as an alternative way to resolve a dispute, Arbitration takes place in a forum outside the court, without the long wait time expected in the court system today. An impartial third party, known as an Arbitrator, conducts the arbitration much the same way a hearing is conducted in a court trial. The Arbitrator then considers all of the testimony and evidence presented and makes a decision, which is final and binding. Arbitration can often save the parties a great deal of money and time when compared to the process of going to trial.

Related Legal Terms and Issues

  • Chambers – The private office of a judge in which the judge may decide to hear matters that should not be discussed in open court.
  • Findings of Fact – The opinions or decisions of a judge or jury as to the underlying facts of the case.
  • Jurisdiction – A territory in which the court has the right, power, and authority to administer justice by hearing and resolve conflicts.
  • Litigation Services – Refers to a complex network of people and services necessary to bring any lawsuit to resolution. Such services include alternative dispute resolution (ADR), mediations, negotiations, crisis and risk management, as well as court reporting, evidence and document management, and a team that creates visual aids for trial. Also referred to as “litigation support.”
  • Pleadings – The specific papers presented to the court describing allegations or denials, asking the court to grant some specific relief or decide a pertinent point. Pleadings are the written documents filed with the court in any lawsuit.

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