What is Litigation?

What is Litigation?

March 29, 2022

As U.S. Naval captain David Porter once said, “litigation is the basic legal right which guarantees every corporation its decade in court.” Jokes aside, litigation can be a complex, confusing, and occasionally a long-term endeavor. So we’re going to define litigation, explain its basic process, and explain what to do if you find yourself involved in it.

Defining “Litigation”

Litigation is essentially the process of filing, contesting, and resolving disputes through the court system. Litigation covers any civil dispute, which can range from insurance fraud to disputing a speeding ticket. It involves two or more parties: 

  • the plaintiff, who is an individual, organization, or group who begins the legal action; and 
  • the defendant, who is the individual, organization, or group the plaintiff is suing. 

Many people automatically assume that litigation means that the case will end in a jury trial While litigation involves court proceedings and the occasional hearing, it doesn’t always. In fact, the majority of cases never make it that far, usually because the parties settle their differences outside of court. And even if the case does go to court, much of the litigation process occurs before the jury is impaneled.

The Process of Litigation

While each case looks different, all litigation follows the same procedure.

Complaint and Answer

  1. Filing: The Plaintiff takes legal action by filing a complaint with the court. The complaint includes facts of the case, the legal basis for the plaintiff’s claims, the harm done, and the outcome the plaintiff is seeking.
  2. Defendant response: After receiving the complaint, the defendant will either issue an answer in response to the claims in the complaint or will file a motion to dismiss the case on the grounds that plaintiff’s complaint is legally insufficient. 
  3. Scheduling: Usually, the court will hold a conference with the parties to establish filing deadlines.

Discovery: This is the process where both parties collect more information about the case. This is often the longest step of the litigation process. 

  1. Discovery can take multiple forms:
    1. Interrogatories: Written questions directed only between the parties and given under oath. 
    2. Depositions: When the parties, witnesses, topical experts, or other relevant individuals or groups submit to live questioning under oath. 
    3. Requests for Production: When parties provide documents, texts, emails, social media posts, and other physical or digital evidence. 
    4. Nonparty Requests for Production. Where the parties collect relevant documents from people or businesses that aren’t a party to a lawsuit, the most common example being medical records.
    5. Request of Admission: When the parties admit or deny statements of fact.
    6. Medical Exam: In certain cases, either party may submit to a physical or mental examination.
  2. Motions:  Throughout litigation, the parties may file motions with the court seeking an order from the court.
  3. Settlement: Frequently, the parties will reach an agreement without a trial. The parties will usually bring in an impartial mediator or other neutral party to walk the parties through facilitation, mediation, or arbitration. Sometimes parties arrive at an agreement on their own, or the parties hire a third-party to help them mediate the dispute and reach an agreement. Settlements generally save time and money and allow the parties to control the outcome, rather than a judge or jury. 
  4. Summary Judgment: In a summary judgment, the moving party files a request that the court look at the evidence and enter judgment in its favor. The court decides whether there are factual disputes that must be determined by a jury. If there are, the motion is denied. If not, the court may enter judgment on behalf of either party. 
  5. Trial
    1. Jury vs. Bench Trial: There are two types of trials: jury and bench. Much like the name implies, in a jury trial the jury acts as the “trier of fact.” The judge instructs the jury about the laws pertaining to the case and determines which information the jury is entitled to during the trial. Per instruction from the judge, the jury will discern which facts about the case are true and which are not true. Then they will apply those facts to the law. The jury determines both whether a law has been broken and, if so, how much the guilty party should pay.  In a bench trial, the judge acts in their capacity as a judge and also in the trier-of-fact role. The trial revolves around the disputed facts of the case. These facts would, if true, incriminate the other party. The trial concludes when the jury or judge reaches a judgment.
      1. Appeals: If either side is unhappy with the outcome or thinks that mistakes were made that would alter the trial’s outcome, they can appeal the case to a higher court. 
    2. Post-Trial Litigation: Sans an appeal, the litigation process continues after the trial based upon the judgment. Usually, these final steps have to do with how the parties will transfer compensation. It is very important to note that even if you have a judgment, the judgment is only a piece of paper until you can collect the money. Just because you have one doesn’t mean you’ll be able to collect, as a multitude of instances could prevent the opposing party from collecting, like if an individual’s main source of income is social security, which can’t be seized to pay a judgment. Or in the case of corporate matters, perhaps the business decides to close rather than pay out on the judgment. That being said, there are other options that may help a party collect on a judgment. 

Depending on if the parties reach a settlement, summary judgment, take the case to trial, or go all the way to an appeal, the litigation process could last several weeks or even several years.  

What To Do If You’re Party to Litigation

The first step is to find a qualified litigator. It’s important to note that while all litigators are lawyers, not all lawyers are litigators. There are various practice areas in law, many of them not involving litigation. 

Having a qualified litigator on your side to help guide you through the process is critical to a successful case—one that hopefully gets resolved quickly!

The experienced litigators at Jones Obenchain are here to take on your every litigation need. We want to serve your best interests and ensure you receive the best possible outcome. Contact us today to find out how we can help you!