Answering this question seems like it should be as short as a simple definition. According to Dictionary.com, litigation is simply "1. the act or process of litigating or 2. a lawsuit."
While those definitions are accurate, that don't actually tell you anything. Filing a lawsuit triggers a series of mechanisms that help the parties work towards resolving a dispute. While many people assume that lawsuits are always resolved before a jury or a judge in court, they are commonly settled by a out-of-court agreement between the parties involved thanks to the litigation process.
Do I Even Have to File a Lawsuit?
Once the decision to seek legal counsel is made, this does not automatically mean a lawsuit must be filed. Many disputes or disagreements will never evolve into a traditional 'lawsuit', which is why it's important to speak with an attorney as quickly as possible, to ensure that you are properly represented from the start.
Once an attorney is retained by a party, the attorney will generally investigate the details of the circumstances surrounding the case, collecting as many facts and as much documentation as possible. While further steps in the pre-lawsuit process are involved, they tend to vary. They may include:
- Writing a letter on a client's behalf
- Filing a Notice of Eviction with a local court
- Extensive independent investigations
- Discovery (a process, generally pre-trial, in which the opposing attorneys share relevant information)
An attorney can sometimes help resolve a case without having to have a lawsuit by following these steps before filing the lawsuit. Sometimes, however, more information may be needed to resolve the dispute or the parties may not be able to reach an agreement on how to resolve the dispute. If that happens, then a party may decide to start the litigation process.
What Is Litigation?
Essentially, litigation is the process by which the legal system attempts to resolve disputes. When parties have a dispute, whether it be about a contract, personal injury, financial or family disagreement, a party may decide to file a lawsuit (which normally consists of the filing of a Summons and Complaint), to enforce or defend legal rights.
The filing of that lawsuit triggers the litigation process. Pre-trial negotiations, motion hearings, mediations, discovery and other proceedings may take place before, during, or after a lawsuit and are encompassed by the term litigation.
Discovery is a particularly important part of the litigation process. Discovery refers to the formal exchange of information among and/or between the parties. This can include the submission of written questions to the other parties in the suit, the request that other parties submit documents concerning certain topics or the taking of deposition of key witnesses. A deposition allows an attorney to question a witness or party under oath about information that witness or party may have about the facts in dispute. As more facts are gathered about the case throughout the discovery process, the parties may continue negotiations to resolve the dispute and end the litigation process.
What Happens in Negotiation?
Negotiations are incredibly important in litigation. If the parties cannot reach an agreement on how to resolve the dispute then the dispute will be resolved by a judge, jury or arbitrator who will most certainly not know as much about the dispute as the parties involved.
There is a tremendous amount of uncertainly in how the decision maker will resolve the case, but a voluntary resolution of the dispute allows the parties to work out the details, cost, and expenses of the dispute and eliminate that uncertainty. The negotiations can either occur directly between the parties or can occur between the parties representing the parties.
Large corporations, such as car or health insurance companies, often encourage extensive negotiations as opposed to taking a case to court, where information about the lawsuit will often become public record.
What About Arbitration and Mediation?
Arbitration and mediation are options often referred to as "alternative dispute resolution methods". These options can take place pre-suit or sometimes instead of a formal lawsuit. Essentially, the idea behind these alternative dispute resolution methods is to save the parties money.
Mediation is an informal process in which the opposing parties present their case to an neutral third party who is normally a lawyer familiar with the law involved in the dispute. The mediator will work to negotiate a settlement between the parties. The mediator will not decide the case but rather works with the parties to try and find a common ground to resolve the dispute.
Arbitration, on the other hand, is much more formal than the mediation process. If you've ever signed a contract for a cell phone data plan, accepted the Terms of Agreement for new software or technology, or even signed certain housing contracts, you may find yourself bound to arbitration rather than being able to bring a traditional lawsuit.
Unlike a mediator, an arbitrator will decide the case. Businesses like arbitration better than the civil justice system, as it's often cheaper than court cases brought to trial and involve far less stringent rules of governance.
Before agreeing to arbitration, speak with your attorney about the possible risks involved in this particular form of resolution.
Litigation Doesn't End With the Trial.
Even if a case goes to trial and ends with a verdict, that doesn't mean that litigation has ended. Even if a plaintiff or defendant has been awarded a certain amount of money as a result of their verdict, further negotiations may be needed to agree upon the manner in which the award will be collected, or to whittle down or move up the amount itself. If one party is unhappy with the decision, they may choose to appeal to a higher court which may delay final resolution of the case for years. Even when the verdict is accepted, there are often post-trial motions, orders, and hearings needed in order to finalize the case.
Litigation is a process that may have a distinct 'beginning' point (the point at which a party or parties decides to file a legal action), but its ending is often more murky and can take months or even years. Retaining legal counsel right from the beginning is incredibly important to ensure that your case is expedited as much as is possible, and that your rights are properly represented — whether in a court of law, in private negotiations, or by mediation or arbitration.
If you're looking for a legal representative to speak with, Bluestein Attorneys is here to help. Whether it's a workplace-related illness or injury, an automobile accident, medical malpractice, business litigation, personal injury, or more, you deserve attorneys who are dedicated to helping you protect your individual rights. We can be reached by phone at (803) 779-7599 or you can schedule your free consultation online just by clicking the banner below.