Involved in a Dispute You Cannot Resolve? Here's Why You Need a Civil Litigator.

Let’s start with a brief description of litigation. 

What is it and why is it used? 

Litigation is a formal process for resolving disputes using the court system or an alternate “system” such as arbitration.  It is a critical part of our society because, at some point, we determined that jousting, fisticuffs, and dueling were too brutal and did not necessarily ensure justice or good maintenance of relationships important to our lives or businesses.  In short, litigation allows individuals, businesses, or entities to enforce or defend their rights when conflicts arise and is an essential mechanism for ensuring justice and maintaining order.

Litigation is structured so that all parties are permitted to present their version of facts and their best argument for the application of the law to those facts to an impartial authority—a judge or a jury.  The outcome is based on credible evidence, long-standing legal principles, and most current applicable laws. 

Generally, litigation involves the following steps:

The Complaint

To commence a lawsuit, the Plaintiff files a Complaint against the Defendant(s).  In separate paragraphs, the Plaintiff describes the nature of the dispute and the basis for relief or remedy sought.  A Plaintiff may seek monetary compensation, specific performance of a contract, or an injunction to prevent further harm.  We have previously written about other types of relief too — such as partition of real estate.

Service of Process

The Complaint must be formally presented to or “served” upon the Defendant(s) – usually by a process server.  Service can be complicated as it requires consideration of jurisdiction and venue (topics for another day).  Strict service requirements are meant to ensure the Defendant(s) have notice of the allegations and an opportunity to respond.

The Answer

The Defendant(s) may then file an “Answer” in response, typically either admitting or denying each of the Plaintiff’s allegations.  The Defendant(s) may also respond with a motion (i.e. seeking to dismiss the Complaint) and/or may assert Counterclaims against the Plaintiff, Crossclaims against other Defendant(s), or even third-party claims against new parties. 

Discovery

In most litigation cases, the next step is called “discovery,” a period during which all parties exchange information and gather evidence to support their claims or defenses. This process includes: (1) Interrogatories – written questions to which written, certified answered must be given;  (2) Requests for Documents; (3) Depositions – where lawyers ask the parties questions in a formal setting with a court reporter;  and (4) Subpoenas – seeking documents, testimony, or both from non-parties.

The goal of the discovery process is for the Plaintiff to ensure they have proof to support their Complaint and for the Defendants(s) to disprove or highlight inconsistencies in the Plaintiff’s proofs.

Pre-Trial Settlement Efforts and Mediation

Upon the conclusion of discovery, some parties may make a Motion for Summary Judgment, wherein the moving party argues that application of the proper law to the facts proven through discovery results in judgment in their favor. 

The parties may agree to engage in mediation while these motions are pending.  Mediation is typically a private process orchestrated by a retired Judge, hired by the parties to find common ground and aid resolution. Mediation, when successful, can save the parties significant time and resources by stopping the litigation process prior to Trial.

Trial

Trial is required if all other attempts at settlement fail.  At Trial, the parties present their arguments, call witnesses, and submit evidence. The judge or jury evaluates the facts and renders a verdict based on their application of the law. If either party is dissatisfied with the outcome of the Trial, they may appeal the decision to a higher court.

While litigation is essential to upholding our laws and protecting our rights, it can be time-consuming, expensive, and emotionally taxing. Whenever possible, strategic diplomacy should be used to avoid prolonged legal battles.

Seasoned litigators are able use to their understanding of the laws as well as their expertise and experience to convince the opposing party to resolve a matter before litigation even begins. 

If you have a dispute you cannot resolve, consider hiring an experienced litigator who can employ a strategy aimed at prompt and effective resolution.