What is Litigation Law?
Litigation law refers to the rules and practices involved in resolving disputes in the court system. The term is often associated with tort cases, but litigation can come about in all kinds of cases, from contested divorces, to eviction proceedings. Likewise, most people think of litigation as synonymous with trial work, but 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.
For those looking to determine if a legal matter falls within the category of litigation, consider whether a lawsuit would solve the matter. If so, the case qualifies as litigation, and an attorney practicing in this area should be retained. If there is no potential for a lawsuit, because there is no controversy or because all of the parties are in agreement, 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 practicing “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 stemming from an automobile accident, the Civil Rules of Procedure in force in that jurisdiction will apply. These rules provide the legal requirements the parties must comply with at 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 will apply.
Demand Letters and Initial Negotiations
In a typical legal dispute, 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.” As the name suggests, 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.
Parties who receive a demand letter from the opposing side may respond by offering to do or pay less than requested, or they may issue demands of their own, or they may decide to do nothing at all. At this juncture, the future litigants have no obligation to cooperate and try to reach an agreement. But with the expense and uncertainty of a lawsuit looming over them, many people opt to play it safe and settle the matter informally at this stage.
Filing a Lawsuit and Conducting Discovery
If a dispute cannot be put to rest through the initial negotiations, then one party will file a formal lawsuit. If either party has not yet hired an attorney, now is the time to do so. The technical rules of filing and responding to a lawsuit are complex, and even small mistakes can have a drastic effect on the ability of the litigants to obtain relief or successfully defend their interests. For example, some personal injury claims have a statute of limitation as short as 12 months. Failure to properly file suit within that time will permanently bar the plaintiff from recovering compensation.
Shortly after a lawsuit is filed, the parties will conduct discovery. Discovery refers to the mandatory exchange of documents and other information between the parties. It will often represent the bulk of the litigation work performed throughout the entire case. Preparing and responding to discovery requests is tedious, and in the field of litigation, tedious means expensive. Besides the exchange of physical evidence relating to the case, discovery also involves the deposing (formal interviewing) of witnesses.
Motions, Trial, and Appeal
The next step in the litigation process is for the parties to review everything they learned in discovery, at which point the defendant will likely file a motion for summary judgment. Basically, the defendant argues to the judge that even if the plaintiff’s factual contentions 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.
Finally, after what can amount to years in the pre-trial stages of litigation, the merits of the case will be heard by the judge or a jury. Witnesses will be called to testify, evidentiary exhibits will be submitted, and the attorneys for both sides will present argument as to why their clients deserve to win. 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.
Hiring a Lawyer Provides an Advantage
Even in small disputes, an experienced litigator can give one party the upper hand. If you have been sued, or if you need to enforce your legal rights, merely hiring a lawyer may lead the other side to think twice. And if the case does proceed to litigation, your lawyer will be there, fighting for you every step of the way.
Know Your Rights!
- Can I File a Lawsuit Without a Lawyer
It is possible to file a lawsuit without a lawyer. This article will tell you how.
- Common Tricks Attorneys Play in Civil Litigation
Regardless of how much merit your case may have, a good litigator can derail your case, even before trial, using a few procedural tricks. Following are a few of them, how you can use them like an expert litigator, and things you can do to fight back.
- How Appeals Work
An understanding of the appeal process and what it really means to take an appeal can be crucial to your success at this point in your legal dispute.
- How Do I Get the Other Side to Pay My Attorney Fees if I Win a Lawsuit?
It is one of the most common questions attorneys receive: how does one sue to get back their attorney fees in a lawsuit? Whether a family law case, a contract dispute, or a tort action, many believe they are entitled to recover their attorney fees from the other party if they win. But, is it that simple?
- I Won My Lawsuit, Now How Do I Collect?
So, you have won your lawsuit, but the other side has not simply cut you a check. What do you do? How can you go about collecting your judgment? These are a few tips to help you with the collections process.
- Is a Polygraph Test Admissible as Evidence?
Have you ever wondered why, in a system of justice that relies so heavily upon people telling the truth, every witness is not strapped to a polygraph machine (i.e., a lie detector)? It is a logical question that leads to others about how interrogations and investigations are conducted when polygraphs are used. So, is a polygraph test admissible as evidence?
- Protect Your Assets From Judgment
If you have already been sued, it is probably too late to do anything to protect your assets. But, if you are a planner and looking to protect your assets before you have a problem, this article is for you.
- Suggestions for Those About to Take Part in a Deposition
The purpose of a discovery deposition is for an attorney or a party in a case to find out as much as they can about the facts of a lawsuit. This guide should help you understand how to behave, what is at stake, and what your obligations are.
- Understanding E-Discovery
E-Discovery's effects on litigation are beginning to spread to even the most simple cases, requiring more and more people to form at least a basic understanding of what it is, how it works, and what their obligations could be in a lawsuit.
- What is a Class Action?
We have probably all received one of those notices in the mail advising us that we are part of a class action lawsuit. Maybe it requires some sort of registration or maybe you do not have to do anything. A few months or years later you receive a small check and never hear anything else about it. What was that? Did you do the right thing? Could you have gotten more money? It is really not as scary or complicated as it might seem.
- What is a Standard of Review in an Appeal?
When one files the appeal, they are asked to describe which standard of review they believe will apply to the higher court's review of the case. So what is a standard of review and why does it matter?
- What is an Attorney-Client Privilege
Whenever someone hires an attorney, an attorney-client relationship is formed, and a privilege is created. But what is the attorney-client privilege? What makes the relationship between a lawyer and a client different from other professional relationships?
- What is Discovery in a Civil Case?
Discovery is the pre-trial phase in a lawsuit in which each party investigates the facts of a case, through the rules of civil procedure, by obtaining evidence from the opposing party and others by means of discovery devices including requests for answers to interrogatories, requests for production of documents and things, requests for admissions, and depositions.
- What is Hearsay?
What is hearsay? Is it admissible in court? Are there exceptions?
- When to Negotiate and When to Litigate
One of the most challenging decisions parties often face in a legal proceeding is knowing when to negotiate and when to litigate. Should they slug it out until the bitter end to get that huge judgment they think they will win, or should they be trying to resolve the dispute, avoid expense, and work things out? Or, are they coming to the table too soon? Is it going to be seen as a sign of weakness?
- Why Does a Lawsuit Take So Long?
One of the most common questions attorneys get while representing a client is “when will this case be over?” This is an obvious question given that the attorney probably costs money, the lawsuit takes time and energy, and living with worries about the outcome of the case can be a constant source of stress. Still, lawsuits take time, and parties who expect a case to be over in a few weeks are usually disappointed. So, why does a lawsuit take so long?
Articles on HG.org Related to Litigation
- Thousands of Talcum Powder Lawsuits Filed Against Johnson & Johnson by Ovarian, Uterine Cancer VictimsJohnson & Johnson faces thousands of lawsuits filed on behalf of women who were diagnosed with ovarian cancer or uterine cancer after using the company's talcum baby powder products. Earlier this year, two juries in St. Louis, Missouri awarded damages of $72 million and $55 million in a pair of lawsuits filed on behalf of women who were diagnosed with ovarian cancer after using Johnson's Baby Powder, Shower to Shower, or other talcum powder products sold by Johnson & Johnson.
- Common Tricks Lawyers Play in Civil LitigationEven for the most experienced of litigators, litigation can be stressful. This is even more true when there is an imbalance in experience due to an experienced trial lawyer facing off against a young or new lawyer or a pro se litigant. A good litigator can easily derail a case even before a trial starts by using some procedural checks. Here are some of the most common tricks lawyers play in civil litigation and how you can fight back.
- When Do You Need to Talk to an Attorney?The old adage is that the best time to talk to a lawyer is when you don’t actually need one. Some of the reasons why you may want to speak to a lawyer include:
- Complaints of Serious Complications With the Use of ESSURE® Likely to Result In LitigationESSURE® complications may lead to litigation.
- FDA Orders Black Box Warning About Overdose Risks for Patients Taking Opioid Painkillers and BenzodiazepinesThe Food and Drug Administration issued a warning that patients taking opioid painkillers together with a class of anti-anxiety medications known as benzodiazepines, such as Xanax or Ativan, may be at risk of suffering a combined drug overdose.
- Rules Regarding Evidence SpoliationAt civil trials, both parties may present evidence and testimony to prove their side of the story. In many cases, the most effective way to convince others of a party’s side is by presenting physical evidence or documentary evidence. However, getting rid of evidence before it can be used in court can have a significant impact on a case and important implications.
- California’s “Good Faith Settlement” Law: An Example from a Recent CaseLawsuits are expensive, as we all know, and as experienced business law litigators, we frequently find ourselves advising our business clients to settle their claims, usually at some reduced value, rather than pursue expensive, distracting litigation. But sometimes, even where your adversary is willing to agree to pay a reasonable settlement amount, filing a lawsuit may be advantageous.
- Criminal Charges vs. Civil ComplaintsCriminal law and civil law are two different types of law that vary based on their purpose, potential punishments and the process in which cases are presented to the court. In some instances, a defendant may be subject to criminal charges and a civil complaint.
- You Can Stop Trademark InfringementYou have gone through the painstaking process of starting a business, developing a brand for your business, namely, your business’ trademark, invested significant time and resources into this development, and suddenly you discover another business is using your exact trademark or a similar one. What can you do?
- Are Pennsylvania Judges and Court Administrators Required to Provide Interpreters?The number of United States residents who are deemed to be Limited English Proficient (LEP) has substantially increased in the recent decades. A (LEP) person is one who does not speak English as his or her primary language, and who has limited ability to read, write, speak, or understand the English language.
- All Litigation Law Articles
Articles written by attorneys and experts worldwide discussing legal aspects related to Litigation including: alternative dispute resolution, antitrust and trade regulation, appellate practice, arbitration, business litigation, civil litigation, class actions, commercial litigation, corporate litigation, financial litigation, mediation, pharmaceutical litigation, product liability litigation, unfair competition.
Litigation Law - US
- ABA - Courts and Legal Procedures
Law and the courts are everywhere—on the front page news, in best-selling thrillers, on Court TV and network shows about lawyers. Famous trials are a great subject, full of human drama, but how many of us really understand the work that courts do and how they operate? Here’s a quick primer, with links that will help you go more deeply into the subject.
- ABA - Section of Litigation
The ABA Section of Litigation is the premier association for lawyers involved in litigation and trial practice. More than 50,000 lawyers representing countless areas of practice turn to the ABA Section of Litigation for member-only access to the latest news, information, and thinking on legal strategy, bringing all sides to one place to form a comprehensive view of the profession.
- Appellate Procedure - Overview
Appellate procedure consists of the rules and practices by which appellate courts review trial court judgments. Appellate review performs several functions, including: the correction of errors committed by the trial court, development of the law, achieving a uniform approach across courts, and the pursuit of justice, more generally.
- Civil Procedure - Overview
Broadly speaking, civil procedure consists of the rules by which courts conduct civil trials. "Civil trials" concern the judicial resolution of claims by one individual or group against another and are to be distinguished from "criminal trials," in which the state prosecutes an individual for violation of criminal law.
- Class Action Lawsuits
The purported purpose of class action lawsuits is to give the common man the ability to take on the largest corporate or private entities (who can afford the very best legal services) and have a chance of redressing the wrong done by these entities.
- Class Action Litigation Information
Class Action Litigation Information is a service provided by Timothy E. Eble, P.A. This website is maintained to provide a useful legal research source for attorneys. It is also maintained as a free service to assist the public in understanding class action litigation, government, and the legal system. The user should find links to numerous sources of information related to many questions that arise in the context of class action or "representative" litigation.
- Federal Class Action Fairness Act 2005
The Judicial Conference's Advisory Committee on Civil Rules requested that the FJC (Federal Judicial Center) study the effect of the Class Action Fairness Act of 2005 (CAFA) on the federal courts. The Federal Judicial Center has accordingly issued periodic reports that examine the subsequent changes in the number of class actions filed in the federal court system.
- Federal Court Rules and Policies
Federal court rules and policies are essential to carrying out the mission of the federal Judiciary. The national policy-making body for the federal courts, the Judicial Conference of the United States, the federal rules of practice that are used in all federal courts, and the Code of Conduct for judges, which addresses matters of judicial ethics are all essential to court operations and maintaining a fair and impartial federal judiciary.
- Rules of Evidence - Overview
Rules of evidence are, as the name indicates, the rules by which a court determines what evidence is admissible at trial. In the U.S., federal courts follow the Federal Rules of Evidence, while state courts generally follow their own rules.
- The Supreme Court of the United States
The Supreme Court consists of the Chief Justice of the United States and such number of Associate Justices as may be fixed by Congress.
- Trial Practice: An Overview
Only a small percentage of legal disputes are litigated in a court. When litigation does occur, several areas govern the lawyers' conduct of the trial or trial practice: Criminal procedure, Civil procedure, Appellate procedure, Legal ethics.