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
- Surprising Ways You Can Get Poisoned: A Lesson in Poison PreventionFor most of us, the word “poison” conjures up fairy tales and fantasies — Snow White’s poisoned apple, Captain Hook’s medicine in Peter Pan, the Wicked Witch’s poppy field in The Wizard of Oz. Or, for readers of a certain age, maybe “Every Rose Has Its Thorn” comes to mind.
- Can a Joint Account Be Garnished?When a creditor wants to ensure that it will quickly receive the funds that it is due, it may go after any funds or assets that it can get its hands on. In some situations, creditors may prefer to garnish a bank account rather than go after an employee’s wages. In many situations, the creditor may be able to access funds in a joint account.
- Wage Garnishment LawsIf a creditor knows that a debtor is working, one effective method for the creditor to collect on this debt is to have the debtor’s wages garnished. However, there are several laws that apply that can affect the garnishment process.
- How Do Subpoenas Work?While a summons may require another party in the case to appear, a subpoena can require that a particular person appear in court or for other proceedings. Additionally, this legal tool can be used to acquire information that one of the party desires.
- How Do I File Contempt in My Family Law Case?If there is an order that was entered in your family law case and the other party is not following the order, you may decide to pursue a contempt hearing. This is one method that individuals use to help enforce their order.
- I Have a Judgment - Now What?After you received a court judgment, you probably thought that your case was over. However, there are several steps remaining in the process, including the collection of your judgment. Fortunately, you have a few avenues to get the money that is due to you.
- L-1 Visa Denial: Three Reasons to Appeal in Federal District CourtWhen an L-1 Visa is denied by USCIS, you may have the option of skipping an administrative appeal to the AAO, and file a petition for review with a Federal District Court under the Administrative Procedure Act.
- I Rented a Vacation Home and It’s Not Available on ArrivalEvery year, people flock to different locations for a change of scenery. Whether contracting with a vacation home agency, organization, national chain or individual homeowner, there may be a variety of remedies available if the home is not available upon arrival. However, the first step is usually to try to work it out before seeking legal remedies.
- If I Am Involved in a Pedestrian Accident, What Are My Responsibilities?Motor vehicles have a legal obligation to share the road. If you are walking or jogging, drivers don’t have the right to hit you just because you were in their way. However, as a pedestrian, you are much more vulnerable to injuries in an accident than the person inside the vehicle is.
- How Is a Class Certified?Before a class action lawsuit can proceed, the class must be certified. This process ensures that the plaintiffs have enough similarities to proceed with litigation against the named defendant as part of one larger case.
- 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.