What exactly is Litigation?
Litigation is the process of taking legal action or resolving disputes through the court system. It involves two or more parties who are embroiled in a legal dispute seeking money damages or another form of relief from a judge or jury. You can think of it as the classic scenario of going to court to argue your case.
In the litigation process, you, as the plaintiff, initiate the lawsuit by filing a complaint in court against the defendant. Your complaint outlines your claims against the defendant and the legal basis for your claims. The defendant then has an opportunity to respond to your allegations and potentially make counterclaims.
Litigation can be a complex, lengthy, and costly process. It often involves several stages, including investigation, pleadings, discovery, pre-trial, trial, settlement, and even appeal. Not all lawsuits go through all these stages; many cases are settled prior to trial.
For example, a tenant might litigate against a landlord for failing to maintain a rental property according to the terms of a lease, or a consumer might litigate against a manufacturer for injuries caused by a defective product. In these situations, the litigation process allows the aggrieved party to seek redress through the courts.
What is the difference between a lawsuit and litigation?
Litigation and lawsuit are two legal terms often used interchangeably but they refer to slightly different aspects of a legal dispute.
Litigation is a broader term that refers to the entire process of taking legal action. It involves all the activities before, during, and after a lawsuit that work toward resolving a legal dispute. It includes stages like investigation, pleadings, discovery, pre-trial, trial, settlement, and potentially, appeal. Litigation encapsulates the totality of the legal proceedings and can involve multiple lawsuits or claims.
On the other hand, a lawsuit is a specific legal case filed in court, typically by a plaintiff against a defendant. It’s a single action within the broader process of litigation. The lawsuit refers specifically to the court case where the plaintiff seeks a legal or equitable remedy from the defendant.
For instance, if you’ve been wronged and decide to take the matter to court, you’re entering into litigation. The moment you file a complaint with the court, you’ve initiated a lawsuit. The lawsuit then becomes part of the larger litigation process, which could involve various motions, discovery, negotiations, and possibly a trial or settlement.
In simple terms, you can think of litigation as the journey, while a lawsuit is a notable event or a step along that journey.
What is the basic litigation process in the United States?
The litigation process in the United States typically involves several distinct stages. There’s no shortage of documentation online and Cornell University has a great breakdown of a typical litigation process. Here is a broad overview of how it usually unfolds:
1. Consultation and Investigation: Before litigation begins, parties usually meet with their attorneys to discuss the case, potential claims or defenses, and possible resolutions. If the decision is made to proceed, the attorney will conduct a preliminary investigation to gather more facts and evidence.
2. Pleadings: The actual litigation process begins when the plaintiff files a complaint with the court, which outlines the plaintiff’s claims against the defendant. The defendant is then served with the complaint and has a specific time period to respond by filing an answer. The defendant may also file counterclaims against the plaintiff.
3. Discovery: Discovery is the phase where each party can request information from the other side to learn more about the case and build their arguments. This process may include depositions, interrogatories (written questions that must be answered under oath), and requests for documents.
4. Pre-Trial Motions: Before the trial, parties may file various motions, such as motions to dismiss the case, motions for summary judgment (asking the court to decide the case or certain issues based on the facts that are not in dispute), or motions to exclude certain evidence from the trial.
5. Settlement Negotiations: Throughout the litigation process, parties often engage in settlement negotiations in an attempt to resolve the dispute without going to trial. This can result in a settlement agreement.
6. Trial: If a settlement isn’t reached, the case will proceed to trial. At trial, each side presents their case, including opening and closing statements, witness testimony, and evidentiary exhibits. The judge or jury then decides the outcome.
7. Post-Trial Motions and Appeal: After the trial, the losing party may file post-trial motions, such as a motion for a new trial or a motion for judgment notwithstanding the verdict. If those are unsuccessful, the party may appeal the decision to a higher court.
This process can vary somewhat depending on the specifics of the case and the rules of the particular court. However, it provides a general framework of how litigation typically proceeds in the United States.
What is the difference between a lawyer and a litigator?
The terms “lawyer” and “litigator” are often used interchangeably, but they do have different meanings within the field of law.
A lawyer, also known as an attorney, is a broad term for a professional who is qualified and licensed to practice law. This means they have completed law school, passed the bar exam, and are authorized to advise and represent clients in legal matters. Lawyers can specialize in a wide array of areas, such as corporate law, family law, criminal law, intellectual property law, and more.
A litigator, on the other hand, is a type of lawyer who specializes in civil litigation, that is, resolving disputes in court. Litigators represent plaintiffs and defendants in civil cases and manage all phases of the litigation process from investigation, pleadings, and discovery through the pre-trial, trial, settlement, and appeal processes.
So, all litigators are lawyers, but not all lawyers are litigators. Many lawyers never step foot in a courtroom, instead spending their careers on tasks such as drafting contracts, negotiating deals, helping clients plan their estates, or advising corporations on compliance with regulations.
In short, if you imagine the legal profession as a big umbrella, “lawyer” is the term for everyone under the umbrella, and “litigator” is a term for a specific group of people under that umbrella.
What kind of cases can be resolved using litigation?
Litigation can be used to resolve a broad range of disputes across almost every area of law. Here are some examples of the types of cases that can be handled through litigation:
Personal Injury Cases
These cases arise when one person is injured, either physically or emotionally, due to the negligence or intentional actions of another person or entity. Examples include car accidents, slip and fall accidents, medical malpractice, and product liability cases.
Contract Disputes
These cases involve disagreements over the terms of a contract or allegations that one party has breached a contract. They can involve a wide range of issues, from business agreements to real estate contracts to employment contracts.
Family Law Cases
This includes cases involving divorce, child custody, child support, and alimony. These cases can become complex and emotionally charged, and they often require court intervention to resolve.
Employment Law Cases
These cases can involve issues such as workplace discrimination, wrongful termination, wage disputes, and harassment claims. Both employees and employers can initiate litigation in these situations.
Property and Real Estate Disputes
These cases can involve disputes over property ownership, boundary disputes, landlord-tenant disputes, and issues related to property damage or nuisance.
Intellectual Property Cases
These cases can involve disputes over patents, trademarks, copyrights, and trade secrets. They often involve complex legal and technical issues.
Commercial and Business Disputes
These can include disputes between businesses, such as partnership disputes, shareholder disputes, and cases involving allegations of unfair competition or business torts.
Criminal Cases
While not typically referred to as “litigation,” criminal cases are resolved through a similar court process, with a prosecution by the government rather than a private plaintiff.
This is not an exhaustive list. Any legal dispute that cannot be resolved through negotiation or alternative dispute resolution methods (like mediation or arbitration) can potentially be resolved through litigation.
Why would someone settle instead of suing for the full amount in court?
Settling a dispute outside of court is often a strategic choice, based on a variety of factors. Here are a few reasons why someone might choose to settle instead of suing for the full amount in court:
1. Cost-Effective: Litigation can be expensive. Even if you believe you have a strong case, the cost of taking a case to trial can be significant. This includes attorney fees, court costs, and other expenses related to the litigation process, such as expert witness fees. By settling, you may be able to resolve the dispute for less than it would cost to litigate the matter to conclusion.
2. Time-Saving: Court proceedings can be lengthy, often taking months or even years to resolve. During this time, you’ll need to devote significant effort and resources to the litigation. Settlement can provide a quicker resolution, allowing you to put the matter behind you and move on.
3. Certainty: The outcome of a trial is uncertain and unpredictable, no matter how strong your case may seem. A jury or a judge might see things differently, and you could end up with less than you hoped for, or even nothing at all. Settling provides a guaranteed outcome.
4. Confidentiality: Court proceedings are public record, meaning the details of your case could become public knowledge. If the dispute involves sensitive or confidential information that you’d prefer to keep private, a settlement can often include a confidentiality clause that keeps the details of the dispute and the settlement agreement private.
5. Preservation of Relationships: If the other party is someone you have an ongoing relationship with, like a business partner, neighbor, or family member, going to court could cause permanent harm to that relationship. Settling allows for a more amicable resolution, which could help preserve relationships.
Deciding whether to settle a case or proceed to trial is a significant decision that should be made with the advice of legal counsel, who can help evaluate the strength of your case, the potential recovery, and the risks associated with trial.
How long does it take to litigate a case?
The duration of litigation can vary widely depending on numerous factors, including the complexity of the case, the number of parties involved, the specific court in which the case is filed, and whether the case goes to trial or settles.
In simple cases, such as small claims cases, litigation might conclude in a matter of months. However, more complex cases, such as those involving multiple parties, intricate legal issues, or large amounts of evidence, can take several years to reach a conclusion.
Here’s a rough breakdown for a typical litigation timeline:
- Investigation and Pleadings: This initial phase, from the time you decide to file a lawsuit until the defendant files an answer, typically takes a few weeks to a few months.
- Discovery: This phase can be the longest part of the litigation process. Depending on the complexity of the case and the volume of information to exchange, discovery can last anywhere from several months to a few years.
- Pre-Trial and Settlement Negotiations: The period for filing motions and negotiating settlement can add several months to a few years to the process.
- Trial: If a case goes to trial, the trial itself might last anywhere from a few days to several weeks, or even months for highly complex cases. However, because court calendars are often booked, it may take several months or more to get a trial date.
- Post-Trial Motions and Appeal: If a party decides to appeal, this can add one to two years or more to the timeline.
Keep in mind these are just estimates, and the timeline for any specific case could be shorter or longer. For a more precise estimate, you would need to consult with a lawyer who can evaluate the specifics of the case.
