- To many, the word litigation translates into argument.
- With that, it is imagined that most of what a litigation lawyer does is argue cases in courtrooms.
- However, in many instances the litigation work a lawyer performs begins far before a case is scheduled to come to court.
- Find out in this article what the 5 aspects are to litigation law that prospective litigation lawyers should know.
It is a given that on any television drama which features attorneys that at some point within the drama’s hour-long episode you will see those attorneys in court, arguing about one thing or the other involving the case at hand – which for the sake of television drama will more likely be a criminal case, usually murder.
Well, that’s fine for your nightly viewing pleasure. But in the real legal world litigation, which is the practice of arguing for or against a case, can involve a variety of legal issues that go far beyond criminal cases.
Not only that, but many of the legal disputes that can eventually be argued in a courtroom, never make it that far, but are instead resolved outside of the courtroom.
Keep reading to find out what exactly can be expected when prospective attorneys consider litigation as their practice area.
- For the litigation attorney, the case usually begins long before it goes to trial.
It makes sense that most people would think of litigation as synonymous with trial work.
The fact is the litigation process begins long before the first witness is called to testify. In fact, the vast majority of litigated cases never reach the inside of a courtroom.
So what is litigation law?
According to HG.org Legal Resources, litigation law refers to the rules and practices involved in resolving disputes in the court system. While the term is often associated with tort cases, litigation can come about in all kinds of cases that range from contested divorces to eviction proceedings.
- When is litigation law needed?
Litigation is needed if a legal matter can only be resolved by way of a lawsuit.
Legal matters that do not require a lawsuit sidestep litigation and instead go into transactional law.
Transactional law occurs when a legal case bears no controversy or if all parties to the matter are in agreement. If that transpires then the issue cannot be described as litigation.
Most non-litigation matters, such as property sales, estate planning, business formations, etc., are handled by attorneys who practice transactional law.
The best way to understand litigation law is to become familiar with the basic stages of a lawsuit. In most tort cases, such as a negligence lawsuit, must comply within the Civil Rules of Procedure which provide the legal requirements the parties must fulfill with each step in the litigation process.
Other types of cases may have their own specific procedural rules for the litigants to follow, but the same general outline applies:
- The parties will first discuss the matter with each other directly.
- Once it becomes clear that a common understanding will not be reached, one or both sides will retain an attorney.
- After investigating the case, the attorney will usually send the other party a demand letter.
- This letter describes what the party receiving the letter must do to avoid further legal action.
- The letter may demand the payment of a certain amount of money, the halting of a particular activity, and so on.
Having received the demand letter, the opposing side may respond by offering to do or pay less than requested. Or they may issue demands of their own, or do nothing at all.
At this point, and as litigants begin to establish themselves due to an inability to negotiate, both parties maintain no obligation to cooperate with each other or try to reach an agreement. Thus a lawsuit begins to take shape.
An interesting side note is at the precipice of a looming lawsuit and the expense and uncertainty of that suit in the minds of the opposing parties, many people opt to play it safe and settle the matter informally at this stage.
- Once a suit is filed, a litigation attorney will begin to conduct discovery.
After it’s been found that a dispute cannot be put to rest through the initial negotiation process, it is time for one or the other party to hire some legal firepower.
As this is done, both parties will have to go through the process of filing a formal lawsuit. Needless to say, this can be very tricky due to the complex technical aspects of the filing itself, which in part is the reason well-seasoned litigation attorneys are needed.
In other words, one small mistake can greatly affect the lawsuit’s ability to be fruitful for either side of the ongoing conflict.
The next step after a lawsuit is filed is for both parties to conduct discovery.
Litigation attorneys understand discovery as an exchange of documents, evidence and other information relevant to the case. This as the HG.org article suggests is the bulk of the litigation work performed throughout the entire case.
Litigation attorneys prepare and respond to discovery requests, which can be a long drawn out effort on their part. It is also not uncommon for discovery to involve interviewing (or deposing) witnesses who are germane to the legal conflict at hand.
- Motions, trial and appeal.
As the process of the lawsuit moves forward, litigation lawyers for the parties will review what they’ve learned in the discovery phase. At this point lawyers for the defendant will likely file a motion for a summary judgment.
With this motion, the defendant’s lawyer argues to the judge that even if the plaintiff's factual contentions in the lawsuit are true, the law does not recognize the situation as one in which the defendant will be held responsible.
If the judge agrees, the case is over and the plaintiff loses. If the judge denies the motion, the case will proceed to trial.
At this stage, the litigation process will entail attorneys presenting merits of the case to a judge, jury or both. This entails:
- Calling witnesses to testify.
- Submitting evidentiary exhibits.
- Attorneys for both sides presenting arguments as to why their clients deserve to win.
Prospective litigation attorneys should know that a jury trial can potentially stretch on for weeks, and when it is over, the losing party will still have the right to appeal, which is almost certain to happen if a large money judgment is awarded to the winner.
Conclusion
To some attorneys, litigation can be one of the most exciting practice areas in the legal world. Litigation affords an attorney to negotiate, go through the various channels of the legal system, research (through discovery), and finally exercise their skills in oratory argument.
It is an all-involved process that yes, can be time consuming and exhausting. However, score a win as a litigator, particularly a big win and you can benefit magnificently as will your client.
