Litigation is used by two parties to defend or enforce a matter in court. While litigation is generally settled by the two parties, it can also be decided by a jury or judge. Litigation is not just another name for a lawsuit, it includes any number of legal processes that occur before and after a lawsuit as well.
These legal processes include:
- pre-suit negotiations;
- court proceedings; and
Litigation Before a Lawsuit
The moment a person decides to formally defend or enforce their legal rights, litigation begins. This usually happens when a party hires an attorney to fight for their best interests. Many attorneys work on pre-suit litigation activities to begin the process.
For example, an attorney may:
- compose a letter on the client’s behalf to demand that the other party compensate the client; or
- file a Notice of Eviction with the court.
An investigation is usually the first step in any litigation process. Without any information or evidence to back a client’s claims, there is no case. A comprehensive pre-suit investigation will focus on the issues in the case, as well as prove the client was wronged by the other party in a way that warrants legal action. It is also the beginning steps toward preparing to present the case in the presence of a judge or jury.
A pre-suit negotiation occurs between opposing parties and is designed to avoid the inconvenience and cost of a lawsuit. The demand letter sent by the plaintiff’s attorney is meant to convince the other party (the defendant) that they have a basis for the claim, as well as solid evidence, documentation, and sometimes the monetary value of the damages. This is sent to give the plaintiff a chance to settle the matter before spending hefty courtroom fees.
Alternative Dispute Resolution
Mediation, arbitration, and facilitation are all forms of alternative dispute resolution. Mediation and facilitation are commonly informal processes. Each party presents their case to an impartial third party (mediator or facilitator) who attempts to negotiate a settlement between the two parties.
Arbitration is the most formal type of alternative dispute resolution. It is generally triggered by a contractual provision; for example, if one or both parties signed an agreement stating they would enter arbitration should a dispute arise. Arbitration is a court case that is heard before a panel of attorneys, or one attorney, as opposed to a judge or jury.
The Formal Lawsuit
- Lawsuit: If the issue cannot be resolved with an alternative dispute resolution, it will be taken before the court. A lawsuit involves the plaintiff filing a formal complaint with the appropriate court system. Once the complaint is filed, the plaintiff will serve a copy to the defendant to inform them of the court case. The defendant will then send an answer and the lawsuit will begin.
- Discovery: The discovery period of the suit is like the investigation phase because both attorneys will gather evidence to prove their clients have been wronged and/or are innocent of the alleged actions.
- Motion Practice: The next phase of the lawsuit is the motion practice. During this phase, a suit can be settled with the judge ruling in a party’s favor without trial. This is called a dispositive motion and it can be a complex affair, as it must show that no further circumstances can develop in the facts to support trial results.
- Trial: The trial is the formal presentation of a case to a judge and jury. Each side takes turns presenting its case to the jury, as well as responding to each other to explain their side of the story. The jury will then deliberate and return a verdict, which will be the final decision of the case.
If a monetary award is disputed or subject to negotiations, there will be post-trial litigation. Sometimes the losing party may be unhappy with the verdict and wish to take the case to a court of appeals.
An Experienced Litigation Attorney
Attorney Louis P. Winner can competently and passionately represent you in any family law case. As a litigation attorney, he is well versed in all legal processes and will do what it takes to obtain a favorable outcome.