Litigation Sub Topics

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Litigation refers to the process of carrying out a lawsuit. Trial attorneys who represent clients in lawsuits are sometimes referred to as litigators, while parties themselves are referred to as litigants. The plaintiff in a lawsuit, who is the party that brings the claim against a defendant, generally begins a lawsuit by alleging that he or she has suffered a financial or other type of harm as a result of the defendant’s actions.

Litigation is a very complex process in which specific rules outlined in laws of state or federal rules of civil procedure must be strictly adhered to. In addition, particular courts usually have their own rules to guide the litigation process. Litigation can become even more complicated if multiple plaintiffs or multiple defendants are involved, or if the parties involved in the litigation don’t live in the same state.

The Stages of a Lawsuit

  • Pleading: The parties submit their initial legal arguments for the judge’s review. The plaintiff uses a summons and complaint, and the defendant has a certain amount of time to respond to the complaint.
  • Pretrial discovery: Once the details of the lawsuit have been worked out, depending on whether the case was filed in federal or state court, the discovery process begins. During discovery, the parties collect evidence relevant to their claim or defense from each other. If the defendant has financial records relevant to the plaintiff’s claim, for instance, the defendant may be required by law to disclose those records to the plaintiff through discovery.
  • Trial: During trial, the attorneys present their case to a jury, who must reach a majority decision reflecting which party has proved their case by a preponderance of the evidence.
  • Entry of judgment: The trial judge will then enter a judgment as to whether and how much damages will be paid to the plaintiff.
  • Appeals: The losing party may seek to appeal. If the appeal fails, the prevailing party may then enforce the judgment.
  • Enforcement:  Each state has highly unique rules regarding enforcement. Among the more common methods of enforcement include a judgment lien against real property, sheriff attachment of bank assets, or a judicial order to garnish wages. Be sure to check your local rules regarding enforcement of judgments.

Alternative Dispute Resolution

Litigation usually continues only if alternative dispute resolution (ADR) has failed. Litigation is extremely expensive and time-consuming, so for most would-be litigants, one of the ADR approaches is usually preferable. For instance, a judge may schedule a series of meetings with the opposing attorneys in an effort to reach a settlement prior to trial. This is known as a judicially supervised settlement conference.

Other forms of ADR include arbitration, in which an arbitrator hears both sides and then renders a binding decision, and mediation, in which a mediator encourages the two parties to reach a mutual agreement to settle their dispute without proceeding to trial. In most states, more than 90% of lawsuits are settled before trial, even if litigation has already begun.

For more information on litigation and the various ADR alternatives, start with the follwoing articles: