Here’s a comprehensive guide on litigation. Learn all about what it is, how litigation is different from lawsuits, the process & time it takes to litigate a case, and more.
What is Litigation?
Litigation is a standard legal process by which disputes between parties are resolved by filing or responding to complaints using public courts and proceedings. It includes mediation rights, discovery processes, court costs, and legal strategies. Litigation is often seen as an alternative to out-of-court settlements, as it allows for more comprehensive dispute resolution and provides greater legal protection for both sides.
Although litigation can be costly and time-consuming, it may be necessary to protect one’s interests if no amicable solution is available. Ultimately, the decision to pursue litigation should depend on the specific circumstances of each case.
How Long Does Litigation Take?
Litigation is a complex and time-consuming process that requires careful consideration of cost-benefit analysis, settlement negotiations, risk assessment, and case preparation. On average, it can take anywhere from 6 months to several years to litigate a case.
It can require multiple expert witnesses and extensive document review to prepare for trial properly. To determine how long it will take to litigate a particular case, attorneys must carefully consider these factors and weigh them against one another. They must also assess any potential risks associated with each option before deciding how best to proceed.
What is The Process for Litigating a Case?
The process for litigating a case can vary depending on the court, jurisdiction, and type of case. In general, the process includes the following steps:
- Filing a Complaint: A party to the dispute files a complaint in court to initiate the lawsuit. Complaints include information about the facts of the case, the laws that were violated, the alleged harm done, and the relief sought.
- Service of Process: The other party is served with the complaint and given the opportunity to respond. A defendant can file a motion to dismiss, arguing that despite the factual allegations in the complaint, the law was not violated or the complaint contains other flaws.
- Discovery: Both parties conduct discovery, which includes gathering evidence and interviewing witnesses.
- Pre-Trial Motions: The parties may file pre-trial motions, such as a motion to dismiss or a motion for summary judgment.
- Trial: If the case is not resolved before trial, it will be heard by a judge or jury.
- Post-Trial Motions: After the trial, either party may file post-trial motions, such as a motion for a new trial or a motion for judgment as a matter of law.
- Appeal: If either party is unhappy with the court’s decision, they may appeal it to a higher court.
Is Litigation the Same as a Lawsuit?
No, litigation and a lawsuit are not the same legal concepts and do not mean the same thing. Filing a lawsuit is only the first step of the entire litigation process. An important distinction between litigation and lawsuit is the presence of alternative dispute resolution. While a lawsuit is simply filing a complaint with the court, litigation involves extensive preparation, including legal discovery, court filings, expert witness testimony, and strategy.
It may also involve negotiation or mediation before a trial. Litigation is taking the case to trial, while a lawsuit is just the beginning of the process.
Litigation vs. Arbitration
Litigation is a legal process in which two parties may eventually resolve a dispute through a court trial. It is the traditional method of dispute resolution and often involves a lengthy trial process. Arbitration is an alternative dispute resolution process in which a neutral third party, called an arbitrator, is appointed to resolve a dispute. The arbitrator considers evidence and arguments presented by both parties and makes a binding decision on the dispute.
The significant differences lie in each option’s procedural hurdles, discovery process, and legal strategies. Litigation involves going to court, which can take much longer than arbitration and requires more paperwork. On the other hand, arbitration allows for quicker resolution since it is conducted outside of the court.
However, it also limits legal strategies and requires parties to agree to a settlement agreement that an arbitrator must approve. Arbitration is usually faster and less expensive than litigation.
Here’s a summary of the differences between litigation and arbitration:
- A court of law determines the resolution of the dispute.
- The process is usually time-consuming and expensive.
- The decisions are binding.
- Parties are usually represented by lawyers.
- An independent third party, called an arbitrator, decides the outcome of the dispute.
- The process is usually faster and more cost-effective.
- The decisions are binding.
- Parties are usually represented by lawyers.
What is the Difference Between a Lawyer and a Litigator?
A litigator is a lawyer who specializes in representing clients in court. While a lawyer may provide legal advice to clients and assist them in navigating the legal system, litigators focus primarily on advocating for clients in court proceedings. Litigators must be familiar with procedural rules, understand the burden of proof, and develop strong legal strategies to achieve favorable client outcomes.
It is important to note that not all legal specialties require litigation, and litigating can be viewed as a particularly challenging area of legal practice.
Many litigators also advise clients outside of the courtroom. They may work on negotiating settlements or alternative dispute resolutions when appropriate. Ultimately, the primary difference between a lawyer and a litigator is that a litigator is a type of lawyer experienced in advocating for clients in court proceedings.
What is Civil Litigation?
Civil litigation is a term that applies to any legal conflict between two or more parties who are pursuing financial damages or a specific outcome, such as an injunction. Civil litigation does not include criminal charges being brought against the defendant. The process involves several steps, including Alternative Dispute Resolution, Pre Trial Discovery, the Mediation Process, and Legal Representation.
Understanding how this process works can help parties successfully navigate the system:
- Alternative Dispute Resolution is a process in which the parties meet with a neutral third party to attempt to reach an agreement without going through a formal court proceeding.
- Pre Trial Discovery is a set of procedures for gathering evidence and information before trial.
- The Mediation Process is an informal negotiation between parties facilitated by a mediator who helps them work out their differences and reach an agreement without going through costly and time-consuming court hearings.
- Legal Representation is vital in civil litigation as it helps ensure that all parties understand their rights and obligations under the law and provides negotiation strategies to help resolve disputes quickly and efficiently.
Knowing how civil litigation works can help individuals make more informed decisions about their legal rights and responsibilities to achieve desired outcomes faster and with less stress.
What is Commercial Litigation?
Commercial litigation is an umbrella term that covers disputes related to business and company matters. Examples of commercial litigation disputes include the following:
- Breach of contract
- Class action
Companies often seek legal remedies through court orders—for instance, the commercial plaintiff may file for an injunction against one or more defendants to protect the company’s interests.
What is Patent Litigation?
Patent litigation is a legal process that occurs when one party sues another for allegedly infringing upon their patented invention or intellectual property without permission. The United States Patent and Trademark Office (USPTO) issues patents, and a patent holder has the right to prevent others from making, offering, using, selling or importing the patented product, process, or service.
During patent litigation, the patent holder must prove that the defendant’s product or process infringes on their patent’s claims. The patent claims are the specific descriptions of what the invention does, and they define the scope of the patent holder’s rights.
Even though patent lawyers also litigate copyright infringement claims, there are court-awarded remedies that are exclusive to these two different intellectual property types.
For some of the damages that can be awarded, the standard of proof for how much the damages are is not calculated the same.
For instance, copyright owners are entitled to statutory damages without proving the profits of the infringer, such as loss of profits caused by the infringer under Statute 17 USC §504: Remedies for Infringement: Damages and Profits.
What is Vexatious Litigation?
In the legal context, the term ‘vexatious’ refers to a legal action or the person bringing the action, such as a litigant or petitioner, that is brought without sufficient legal or factual grounds and is meant to annoy, harass, or intimidate the other party. The purpose of vexatious litigation is often to force the other party to give in to the demands of the person bringing the action.
In family law, the term ‘frivolous’ is more commonly used to describe this type of lawsuit. However, vexatious litigation can occur in any legal context, including civil and criminal cases.
It’s important to note that vexatious litigation can also occur in a valid lawsuit if a party files meritless motions that are repetitive, burdensome, and unwarranted. In such cases, the court may impose sanctions or penalties on the vexatious litigant to discourage them from further abuse of the legal system.
What is Probate Litigation?
Probate litigation is a legal process used to resolve disputes over a deceased person’s estate. These disputes can involve a variety of matters, including the validity of a will, the proper administration of the estate, the interpretation of the deceased’s wishes, or disputes between family members and other interested parties. In probate litigation, the probate court determines the rights of the parties involved and the proper distribution of the estate.
They may also have to pay for costly legal fees, expert witnesses, and other financial obligations such as contingency fees. In most cases, the burden of proof lies with the plaintiff. Furthermore, there are often opportunities for court appeals if either party desires.
What are the Steps Involved in Managing a Litigation Case?
Managing a litigation case involves various tasks that require careful planning, organization, and attention to detail. Here are some of the critical tasks involved in managing a litigation case:
- Initial consultation: Meeting with the client to assess the facts of the case and provide legal advice.
- Drafting pleadings: Drafting legal documents such as complaints, motions, and other court papers.
- Discovery: Gather evidence and information from both parties through interrogatories, requests for production, requests for admissions, and depositions.
- Motion practice: Drafting and arguing motions before the court.
- Settlement negotiations: Negotiating a settlement between the parties.
- Mediation: A meeting between the two civil litigation parties with which a neutral third party, the mediator, is present and assists in negotiating a resolution for the dispute.
- Trial preparation: Preparing for trial by researching the law, interviewing witnesses, and preparing trial briefs and jury instructions.
- Trial: Representing the client in court. 8. Post-trial proceedings: Filing post-trial motions, appealing the decision to a higher court, and collecting any awards or judgments.
What Standard of Proof is Needed for Civil Litigation Cases?
In civil litigation cases, the standard of proof needed is typically a preponderance of the evidence. This means that the plaintiff must provide enough evidence to show that their version of the facts is more likely than not to be true.
To meet this standard, the plaintiff must present evidence through pre-trial discovery, case evaluation, alternative dispute resolution, or expert witnesses that is more convincing than the evidence presented by the defendant.
Pre-trial discovery involves gathering evidence and data from both parties to build a clear case. Case evaluation requires analyzing each side’s facts and arguments to determine which should prevail. Alternative dispute resolution involves mediation and arbitration between two parties who seek to settle without legal action.
Expert witnesses may also be called upon to provide an opinion regarding a specific issue in the case, which acts as evidence. Ultimately, the burden of proof falls on the plaintiff to prove their case with a preponderance of the evidence. If the plaintiff meets this burden, the court may rule the case in their favor and award damages or other relief.
Can You Take a Plea Bargain in Civil Court?
No, defendants in civil court cases can not make plea bargains. There are no pleas in civil litigation.
How Much Does a Litigation Lawyer Cost?
The cost of a litigation lawyer varies depending on the type of case and how the method the litigating attorney charges clients for their work. For instance, a plaintiff lawyer will charge 40% of the case proceeds if the case is a personal injury claim being litigated.
However, if it is another type of civil suit or the client is a defendant, the cost of a litigating attorney will depend on how much they charge per hour and how many hours they must devote to litigating the case on behalf of their clients. Some typical factors tend to affect how much a lawyer charges per hour, which include the following:
- Is the litigation attorney civil or commercial?
- Does the litigation lawyer have experience and many years of success and trial victories?
- Is the attorney employed by a large, established law firm?
- Has the lawyer made partner status at their law firm, or are they an associate?
All of these factors can directly impact how much the litigation lawyer attorney for their work.
The more complex and longer the case runs, the more hours the clients will be charged, increasing the cost of litigation.
Generally, the average cost for litigation lawyers that charge hourly will range from $150 per hour on the low end to around $500 per hour on the higher end, with the bulk of attorneys charging around $300 per hour. Still, some commercial litigators charge much higher rates into the several thousands of dollars per hour.
Lawyers for DUI cases may also charge a flat retainer fee upfront in addition to or as an advanced payment of the hourly fee.
Written by Aaron R. Winston
Last Updated: May 8, 2023 6:39pm CDT