Most people involved in legal disputes expect to go to court. But most cases never reach trial. In federal court, only about 1% of civil cases go to a jury or bench trial. Some commentators even believe trials may someday become extinct.
Before a case settles, most parties go through at least the first few stages of litigation. But what is litigation? Why is it so expensive? And why do lawyers and parties try to settle cases to minimize the use of it?
Litigation Definition
The American legal system is considered an adversarial process. In this process, a trier of fact, such as a judge or jury, views evidence presented by opposing parties and discerns the truth.
Litigation encompasses the steps performed by lawyers and judges to prepare a case and present it at trial. In other words, litigation is the process of preparing, filing, and conducting a lawsuit. Litigators have knowledge, skill, and experience using:
- The rules of civil procedure governing lawsuits
- The rules of evidence that determine what gets presented at trial
These rules govern many of the processes you may have heard about. For example, they cover lawsuits involving one plaintiff and one defendant. They also cover the filing and conduct of class action lawsuits involving multiple plaintiffs.
These lawsuits are often used when hundreds or thousands of people suffer the same injury due to the same cause. Thus, asbestos settlements arose from class action lawsuits.
Litigators usually focus on a particular substantive area of law as well. Corporate litigators represent companies in their business disputes, while personal injury litigators file product liability cases.
Steps in the Litigation Process
Lawsuits begin with pleadings. These documents set out the parties’ initial positions. The plaintiff starts a court case by filing a complaint that explains the basis for the lawsuit. They respond to the complaint with an answer. The answer sets out the defendant’s version of the facts and any affirmative defenses.
The defendant can also make counterclaims against the plaintiff. For example, in a car accident case, the defendant can deny responsibility for the crash and declare injury claims against the plaintiff by asserting they were the negligent party.
Discovery
Discovery comes after the pleadings. This process requires the parties to make two types of disclosures. First, the parties must automatically exchange certain evidence in their possession, such as the names of witnesses and any evidence supporting the claims or defenses in the pleadings.
Second, the parties will ask each other for evidence. If a party has evidence responsive to the request, they must produce it or assert a reason for withholding it. For example, parties can usually refuse to produce attorney-client communications.
Discovery can push the parties closer to settlement. Once they see the other side’s case, they may become more willing to compromise on a resolution instead of risking a major loss at trial.
Suppose a medical malpractice insurer finally sees the severity of the plaintiff’s injuries and the witness statements against the doctor during discovery. The insurer might realize that a medical malpractice payout could help it avoid an unsympathetic jury and a huge damage award against it.
Motions
During and after discovery, the parties will file motions with the court. Some of these motions can end the case early. For example, a defendant might file a motion to dismiss if the plaintiff has no legal basis for the lawsuit.
However, most motions set the stage for trial. In deciding these motions, the judge determines what evidence the parties can present and how they can present it. For example, a party might file a motion to disqualify the other party’s expert witness because they lack the qualifications, experience, or training to testify as an expert.
Trial
The plaintiff generally gets to decide whether to have a judge or jury decide their case. At trial, the plaintiff goes first and presents their evidence to the trier of fact. The defense team cross-examines each witness and, at the close of the plaintiff’s case, gets to present its evidence.
Generally, the lawyers only present legal arguments at the beginning and end of the case. In between, the lawyers are only supposed to present witnesses with factual evidence and expert opinions relevant to the claims.
At the end of the trial, the judge instructs the jury on the law of the case. The jury weighs the evidence and delivers a verdict for one of the parties. A verdict in favor of the plaintiff will include a damage award. If the jury cannot reach a decision, the judge declares a mistrial and the litigation process restarts.
Why Do Parties Settle Instead of Litigate?
What is litigation, and how do lawyers use it? Litigation meaning lawsuits, is time-consuming and costly. Clients generally want to avoid using it for resolving disputes.
However, they create the conditions for settlement by imposing costs and deadlines on the defendant. The pressure generated by litigation can often push the parties to settle.
Learn About Litigation Law From ConsumerShield
ConsumerShield educates people with legal disputes about the court process. We can also connect you with injury attorneys who can advise you of your options. Contact us for a free case evaluation to learn more.
