Litigation - A Brief Guide
What is litigation?
Litigation is the process of taking legal actions, often in courts of law, through procedures arising from complaints, answers, counter-claims, third-party complaints, or other motions or affirmative matters. Litigation can be a very costly and time consuming process, which can end with judgments for payments of money against one of the parties. A plaintiff commences the lawsuit by filing a complaint and naming at least one defendant.
Litigation Before the Lawsuit
Litigation starts when you decide to formally defend or enforce your legal rights. In most legal cases, this occurs when you hire the services of a lawyer to represent your company on the cause of action, or claim that it has.
Most lawyers engage in several pre-suit activities that include composing a demand letter to send to the other party. More details regarding pre-suit activities are discussed later in the article.
The first step in the process is the ‘investigation’ performed by your lawyer. This extensive and independent investigation will help your attorney understand you have a right to file a lawsuit. After this, he or she will be able to provide you with more details about the probable outcome, including your rights and potential compensation.
Development of the Case Before Filing Lawsuit
Pre-suit litigation is the work performed by your attorney before the case reaches the court. This includes dialogues between the parties involved in the case so that the situation can be resolved without a lawsuit.
The demand letter is also written with the same intent. However, the plaintiff usually requests more than what they think the defendant will be ready to pay. This opens a door for negotiations that may go on for a while.
Settling the matter out of court helps both the parties as it reduces effort, time, and expenses as well. Insurance companies are usually interested in solving the matter out of court.
Arbitration – or Mediation – Alternative Dispute Resolution (ADR)
Arbitration Also known as mediation or facilitation, it’s a type of alternative dispute resolution (ADR) that may take place before the actual lawsuit gets filed or after the lawsuit begins.
In fact, in some situations, the court may suggest the parties to consider mediation. It’s an informal process where both the parties present their case to one or a team of attorneys so that a settlement can be reached.
The attorney will usually put forward a dollar value that both the parties can accept or reject within a specified time period. The case gets
settled if both the parties accept the offer.
A formal form of ADR is arbitration. It is a formal proceeding and involves one or more attorneys. They hear the case and pass judgment. Arbitration can be triggered by a contractual provision.
It’s a more affordable and less formal type of litigation. The parties may decide to enter into arbitration even during litigation to reduce costs or expedite the court case.
The Lawsuit Begins When Complaint Filed with the Court
A lawsuit is a formal complaint filed by the plaintiff. It must be filed with the right court, and a copy of the same has to be served to the defendant as a notice of the court case.
The defendant will then go to file an Answer within the specified time period, or otherwise plead. Often a motion to dismiss, or other motion if filed before the complaint is answered, and thus the lawsuit commences.
The rules governing formal lawsuits differ from state to state and even city to city in some cases. Nonetheless, it usually involves the following phases:
Discovery of Facts in Litigation
The process involves formal investigation of the lawsuit and the information reported as facts. This information is usually submitted by the plaintiff and defendant but may also involve facts extracted by attorneys and authorities.
Attorneys have the option to submit written requests for Discovery. These include:
- Request for interrogations, a list of written questions to be answered by the opposite party. The attorney may also ask direct questions and some witnesses may also get involved. It’s known as deposition and is recorded word to word.
- Request for evidence and documents, i.e: to get access to information
- Request for admissions, i.e: request for the opposite party to admit to facts
Pre-trial Motion Practice in Litigation
Some attorneys may get engaged in motion practice. It’s a mechanism that involves one of the parties filing a petition with the court to announce a decision regarding one of the disputed aspects of the case.
The request is submitted during the Discovery period by the attorney on behalf of the client. It involves targeted and short briefs coupled with oral arguments.
The matters discussed are usually small such as requesting dispositive motions or asking for more time for Discovery.
Trial – Where the Real Litigation Is
The case reaches trial after the closure of the Discovery phase and the hearing of all pre-trial motions.
However, not all litigation reaches this stage. Trials can be very expensive with uncertain outcomes. Most people prefer to settle the matter before it reaches this stage.
In a trial, your attorney will present the case to a jury. However, if both the parties agree, then the case may go to a bench trial, which is not a very common occurrence these days.
Each side will present its case in front of the jury and get a chance to respond to the allegations put forward by the other party. The jury will then decide the case based on the rules of court and the evidence submitted.
Post-Trial Motions the Litigation Continues
The interesting thing about litigation is that it continues even after the decision is out or the trial has ended. It is common for the parties to dispute the decision and appeal to a higher court.
Even in cases where both the parties are content with the outcome, there may be a need to attend hearings for the case to be closed.
Litigation can sometimes be to the point and very quick or can continue for years. You will need an attorney throughout the journey to defend
your case and represent your point of view.
Appeal, or Judgment
After the court has ruled in trial, and after any post trial motions are disposed of, the party that lost has a choice. In a short amount of time that party may appeal the decision, in which case the litigation goes up to the next level.
A bond must often be posted before an appeal proceeds. The appeal is a much smaller version of the original trial. The first trial forms the record. From inside that record, the appeal zeros in on specific findings or alleged errors in the facts or law that happened at the trial court level.
Questions of law are reviewed de novo, while questions of fact have the higher manifest error standard of review.
Collection of Judgment
Remember, a judgment is not money – it’s just a judgment – a court ordering a party to pay another party. Additional procedure is required for it to be enforced.
The citation to discover assets procedure is the best method to collect a judgment. The citation lien extends to all non-exempt personal property.
How is a lawsuit started?
The process differs from court to court and jurisdiction to jurisdiction. In most states, you can start a lawsuit by filing a complaint in the local clerk’s office.
An attorney or the court will then summon the defendant and deliver the notice to the defendant. However, in some states, such as in NY, the court will first summon the defendant and then ask for a complaint.
The summons can be published in newspapers if the defendant or any adult related to the defendant cannot be found. The rules, however, differ from state to state.
You will need the help of an attorney to file a lawsuit, especially because it may be necessary to also submit some legal documents when you file a lawsuit.
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