The legal definition of litigation law refers to any lawsuit between two or more parties. Attorneys who represent parties in a lawsuit are called litigators and the parties themselves are called litigants. Litigation law involves the complex rules of civil procedure and evidence, and cases can occur in both state and federal courts. It's important to hire an experienced litigation attorney to help you understand what happens during the litigation process.
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UPDATED: Aug 19, 2021
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- The definition of litigation is the legal process of a lawsuit
- Litigants are the parties to the suit: a plaintiff files the lawsuit and a defendant responds
- Litigators are the lawyers representing the parties to a lawsuit, which can include more than just one plaintiff and one defendant
If a lawsuit could help resolve a dispute you have, it is considered litigation. When most people think of litigation, they think of the courtroom proceedings we see on TV. In reality, the litigation process begins much earlier and never even sees the inside of a courtroom most of the time.
However, many different legal niches fall under litigation law, including business law and insurance law. If you need to hire a lawyer, make sure that you find an attorney who specializes in the type of litigation law that covers your specific kind of dispute.
Because there are so many types of litigations, you need to conduct a thorough search to find the right attorney for your needs. Start here with our free legal tool. Enter your ZIP code above to find an affordable litigation attorney in your area.
What is litigation law?
Litigation law is a broad area of the law that refers to any lawsuit between two or more parties. Attorneys who represent parties in a lawsuit are called litigators and the parties themselves are called litigants.
Litigation law refers to the rules, practices, procedures, and parties involved in a legal dispute. Some of the most well-known litigation cases are tort cases, which can involve large class-action litigation lawsuits.
Litigation law often involves complex rules of civil procedure and evidence, and cases can occur in both state and federal courts. Litigation can involve multiple parties, making the process even more complicated. Oftentimes, a party in a lawsuit may not live in the state where the case was filed, increasing the costs and complexity of the litigation process.
To understand what happens when you engage in litigation, it’s important to understand all of the steps involved. This will help set realistic expectations regarding how quickly the process of litigation moves. Depending on the facts and circumstances of your case, you could be looking at years of litigation ahead. That does not mean you have a bad lawyer or a bad case — it’s just often how the bureaucratic process works: slow and methodical.
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What happens during litigation?
Litigation begins well before you see the inside of a courtroom. In fact, litigation can occur before a lawsuit is even filed if the plaintiff chooses to start pre-lawsuit litigation. This frequently comes in the form of a demand letter.
However, the litigation attorney representing the plaintiff will investigate their client’s allegations to be sure there is a valid claim before sending a demand letter. A good lawyer will not send a demand letter before verifying the facts of the case as stated by their client.
A demand letter sent by the plaintiff’s attorney to either the defendant or their counsel will state a brief overview of the facts of the case and make a demand for resolution. This demand may include the performance of an obligation under a contract or payment of funds to the plaintiff to recover money lost or spent due to the defendant’s negligence.
When a defendant receives a demand letter, it is usually their first notice that a litigation lawsuit may be forthcoming.
The letter will include a timeline for response, and it’s recommended that you hire an attorney within that timeframe before taking further action. Parities may be motivated to settle to avoid a formal lawsuit in civil court, but sometimes a lawsuit is inevitable.
Sending a demand letter will kick off the litigation process. The stages of the litigation process are described below:
Step One: Filing a Lawsuit
If the plaintiff and the defendant cannot agree on a resolution, then a formal lawsuit may be filed. It’s important that this is done within a certain amount of time or the lawsuit may be rejected. This time limit is known as the statute of limitations and can vary considerably depending on the cause of action, court involved, and even the defendant.
For example, a common statute of limitations for personal injury claims is two or three years in many states. If, however, your injury was caused by a government employee in the course of their job, you can have a much shorter window. Some cities or states require notice of an intent to sue within 45 or 90 days of the incident that you’re seeking to recover from.
A party involved in filing a lawsuit should have an attorney. Filing a lawsuit is a complex process, and full litigation in court may require a serious time and financial investment. There are strict and detailed rules that must be followed by the plaintiff and the defendant. If they do not strictly adhere to the rules, the court can dismiss the case. This is why it’s prudent to partner with a trusted litigation lawyer who specializes in the legal niche pertinent to your case.
Once the paperwork is complete, a clerk of the court will sign off on the paperwork and the plaintiff will need to serve the defendant. This is best done in compliance with the rules of the court, often using a private process server or your local sheriff’s department.
Just like filing a lawsuit has strict rules, so too does serving a defendant. A private process server and a sheriff will understand and follow these rules to make sure that the defendant is properly served. If you do not follow these rules, the defendant could claim improper service and have your case dismissed.
Sometimes defendants know a lawsuit is coming so they will try to avoid service. Private process servers are paid to ensure that the defendant is served and attest to it so that your case can move forward. It may take a few days, but once the defendant is served, they generally only have 21 days to respond to the initial filing.
Step Two: Discovery
Once the defendant responds to the lawsuit, discovery begins. Discovery is a legal process involving the formal examination of all facts relevant to the lawsuit. Essentially, this is information and document exchange between the parties and it comes in many forms, including interrogatories, subpoenas, requests for admissions, and depositions.
What are interrogatories?
Interrogatories are written questions that one party submits to another to answer. Oftentimes, these questions are looking for information related to the case at hand but do not include any specifics. The party receiving the interrogatories can object to the questions as too broad, meaning the question is not specifically related to the case.
Generally, interrogatories require a response within a reasonable amount of time. When your lawyer sends interrogatories to the other party, they will need to act quickly and respond to the questions. When you get interrogatories, it’s best to work with your lawyer to answer them as soon as possible. If you provide too much information, it could hurt your case. Hire a litigation attorney to help you answer these questions honestly without incriminating yourself.
What is a subpoena?
Subpoenas issued during discovery are typically requesting documents. In some states, any person can issue a subpoena on behalf of the court without prior approval from the court.
Just like interrogatories, it’s best to work with your lawyer when sending or responding to any document requests. You want to make sure that you are providing accurate documentation but that is not confidential or otherwise protected.
When your lawyer sends a subpoena requesting documents from the other party, they may need to go through some of the documents with you. You may be able to provide additional insight that could lead your attorney to request more information from the other party, building a stronger case on your behalf.
What is a request for admission?
Requests for admission are exactly what they sound like — one party makes a statement and asks the other party to admit it is true.
Requests for admission are often written statements that your lawyer may send to the other party. For example, if you and the defendant entered into a contract, your lawyer might ask the other party to admit that said contract exists.
Requests for admission are key pieces of the discovery process. It helps clear the way to get to the meat of the issue between the parties. By admitting to some shared facts, the parties can better evaluate their positions and take proactive steps toward resolution.
What is a deposition?
Depositions are essentially interrogatories that are face-to-face as opposed to written or digital. Depositions occur when one party sends a subpoena to the other party or a witness to testify under oath about certain facts related to the case. A deposition is frequently recorded and may have a court reporter present. People who are being deposed will swear an oath and their testimony will carry penalties of perjury.
However, a deposition is not as formal as testifying in court. Objections can be made to questions or to answers, just like in a courtroom, but there is no judge around to rule on the objection. As a result, objections are often recorded but the witness still answers the question. If the parties have an issue, they go to the judge later who will decide whether the witness’s answer can be used in court or not.
Depositions are vital to gathering additional information, especially through witness conversations. Many people speak more freely than they write, leading your lawyer to gather additional information about your case.
Step Three: Going to Trial
A vast majority of litigation settles before trial, but there is still a chance your case can go to trial. It’s best to do your research and learn what’s coming in case your litigation suit goes to trial, where each party presents their strongest case before a judge or jury.
No. Parties are at liberty to waive a jury trial and try their case just before the judge. A defendant is entitled to a trial by jury in criminal matters, but jury trial can be waived by defendants in civil or criminal matters. Trial by judge presents a strategic advantage if you have a complex issue the judge has experience in, especially if you have a strong argument.
After each party presents their case, the other side has the opportunity to rebut their arguments. This does not go back and forth forever. This is limited to just once unless new information or a strong reason to provide additional time for more rebuttal is approved by the judge.
In complex cases, trial preparation can take years, and the trial itself may take weeks. That, however, is not the norm. Most trials occur within a few months of being requested, and they usually wrap up in a day or two. The judge or jury will then render their verdict, called a judgment in civil court.
Step Four: Appeals
The losing party may always appeal a judgment. This frequently happens when a judge or jury awards a large sum of money to the winning party.
Filing an appeal in a civil case may reverse a decision that was improperly made or a mistake made during the trial. A judge makes an incorrect decision on an objection or whether to let certain evidence into the record, and these decisions can ultimately affect the outcome of the trial. If the appealing party wins, they may be able to get the verdict overturned and require a new trial altogether.
Step Five: Enforcing a Judgment
If you have won your lawsuit and the judge or jury rendered a verdict in your favor, you now have to collect a judgment against the other party. But how do you collect your compensation?
A court will give you a legal document that shows you have won a judgment against the other party, but they will not collect the money for you. Enforcing a judgment is your responsibility, and you have several options at your disposal.
Fortunately, most people who have a judgment against them will actually pay up. A judgment can appear on a background or credit check, disrupting one’s ability to hold a job or secure a loan, and they may be eager to pay and move on.
Other people simply do not know how to pay. Just like you received the judgment but no help from the court on how to collect, the court does not instruct a losing party on how to pay the judgment. It’s up to the parties to work that out. Many times, all it takes is a letter from your attorney describing how payment should be made and when. You might be surprised how quickly a check ends up arriving at your lawyer’s office.
If the judgment is extremely large, you may be willing to offer a payment plan to entice the losing party to start paying soon. You can also suggest ways for the losing party to raise funds to pay you, from selling assets to taking out a loan.
If a letter does not do the trick and the losing party still has not paid you after a reasonable amount of time, your attorney can take more intense steps toward collecting the debt owed to you. Your lawyer may be able to go to court on your behalf and have a judge sign off on wage garnishments or automatic withdrawals. If the losing party does not work or does not have enough funds in the bank, you may need to try and collect other assets.
A lawyer can appeal to the courts for the repossession of larger assets that can be applied to your judgment, but this can be a complicated process. Requesting that a court grant you the ability to force the sale of someone else’s property presents unique challenges. It’s not impossible, but you will need an experienced lawyer walking you through the process.
As a last resort, you could try to sell the debt. Some banks and other investors may offer you a portion of the judgment to buy the debt. It may only be a small percentage of the total debt owed to you, but you get that compensation in a lump sum and no longer have to chase it down. In some cases, it can be worth it to get a smaller amount of money now and release the stress and anxiety of trying to collect the debt yourself.
In the end, it might be cheaper to settle outside of court and get a portion of your compensation now versus waiting for a judgment that may never come.
Taking this approach will require a settlement agreement. When you sign a settlement agreement, you will agree to waive the judgment and only accept the money required under the settlement agreement. If you later find the other party had more money hidden somewhere or more assets and could have paid you the full amount, there’s nothing you can do. So you need a legal advocate to make sure your rights are protected.
When should I hire a litigation lawyer?
No matter what subject matter your legal dispute falls under if it’s possible that litigation can resolve your issue, find a local litigation law firm to help you as soon as possible. Look for litigation lawyer descriptions that speak to the subject matter of your case. Whether it is business law or divorce law, litigation attorneys practice in a wide range of legal areas.
From pre-lawsuit negotiations to proving your case at trial and proactively helping you collect on the judgment, the right litigator can be a vital asset. Use our free legal tool below to find an affordable litigation lawyer who can help resolve your legal issues. Enter your ZIP code below to speak to an attorney today for free.