What is litigation, and what is a litigator? Basically, everything that takes place once a case is filed in court, up through and including trial, is called “litigation.” If the case isn’t a criminal prosecution, then the case is called “civil” litigation. A lawyer who can engage in litigation is called a “litigator.”
When one party sues another, the litigation officially starts. The plaintiff files and serves a complaint, in which the plaintiff describes the dispute and the legal claims of liability, sometimes called causes of action or counts, that he is asserting. Once the other party, the defendant, is served with the complaint, along with the summons to appear in court, the defendant usually has 30 days to respond to the complaint, either by filing an answer or a motion. The defendant may also file a cross-claim, or cross-complaint, against the plaintiff, or third parties, if the defendant asserts that these other parties share liability with him, or share the full responsibility of any damages being sought against him. The defendant may also be required to file a mandatory cross-claim requesting damages for a related but different transaction than the plaintiff describes in his complaint.
During litigation, the parties, usually through their lawyers, engage in discovery. Discovery involves a party making a written request for information, or noticing an oral deposition. The written request for information can be in the form of questions (called interrogatories), document requests, and requests for admission, where a party is asked to admit or deny the truth of various statements. A deposition is an oral question and answer session of the other party, or of a non-party witness, with a stenographer present to record each question and answer given at the deposition.
Litigation also includes letter and email writing, usually to opposing counsel and others. Sometimes unfortunately, a lawyer representing a party in litigation tries to engage his opposing counsel in lengthy letter-writing campaigns. There is usually little value-added to a case from a letter writing campaign, plus, these campaigns are expensive because a lawyer usually charges per hour, unless handling the case on a contingency basis or a flat fee.
Litigation also involves writing, filing and arguing of motions. A motion is a written request to a judge for a court ruling in favor of the party filing the motion. Motions can be “procedural” or substantive, seeking to limit or expand the claims of liability. There are dozens and dozens of procedural motions that can be filed during a case, and again unfortunately, some lawyers file lots of motions that don’t really benefit their client.
Litigation also involves a trial preparation phase in the few months just before trial. In this phase, most discovery is already completed and the majority of procedural and substantive motions have been decided. In this trial preparation phase, the lawyers fine-tune their clients’ case theory, make formal demands on witnesses (through subpoenas) to appear at trial, and review all the evidence gathered during the discovery stage of the litigation in order to decide which evidence will best support their clients theories.
The final phase of litigation is the trial, at which the parties put on their best evidence, both documents and witnesses, to persuade the trier of fact, either judge or jury, that their side should win the case. Trials can last a day, or weeks, depending on the nature of the dispute and the amount of evidence to present. The trial is by far the most intense part of the litigation, requiring special lawyer skills, and courage by both the lawyers and parties.
No discussion of litigation is complete without mentioning negotiation. Most cases settle before trial, which means that some form of pre-trial negotiation occurs between the parties, in almost every case. Until the 1980’s, negotiation between the parties was directly through their attorneys, or the parties themselves. Since then, mediation has become the favored method of negotiation, at which a third-party mediator is hired by both sides, or appointed by the court, to facilitate a settlement. If mediation fails and the parties cannot settle the case before trial, the case goes to trial. Today, no more than about two percent of cases actually make it to trial.
James A. Vickman, Esq. for LawyerandClient.com, the Resource Desk of Vickman & Associates. firstname.lastname@example.org, 310-553-0567
Vickman & Associates is a law firm located in Beverly Hills, California, representing individuals and companies in litigation, trials and transactions.