Litigation is a noun most of us are familiar with, but few outside the legal field
understand the real definition. Litigation refers to the process of contesting and
resolving disputes in the legal system.
That is clearly a very general term, and it can refer to any sort of dispute, from medical
malpractice to fighting a parking ticket in court. We will break down the litigation process
into specific pieces, but many of these steps will look different depending on the case.
Litigation vs Lawsuit
Let us start with what litigation is not. Many people assume litigation means taking
someone to court, and while the idea is correct, the vast majority of litigation never
makes it into the courtroom. A formal lawsuit is a piece of litigation, but you’ll see that
much of the litigation process takes place before the court is ever called into session.
The Litigation Process
Answering “what is litigation” really involves answering what each of its steps are. The
litigation process can be broken down into five steps. Some of these steps can be
broken down further into notable pieces of the litigation process:
Investigation and Demands
Demand Letters and Pre-Trial Negotiation
Out-of-Court Options: Alternative Dispute Resolution
We go through each of these steps in moderate detail to help you understand the main
ideas of every step in the litigation process.
Investigation and Demands
Litigation has its start when a client approaches an attorney with their dispute. Whether
a tenant has a mountain of unpaid rent, or a business partner made off with company
profits, the attorney will review the potential client’s case. Should they accept the client,
litigation begins in earnest.
The first part of the litigation is an informal investigation into the facts. The attorney will
conduct research into the exact details, getting any and all accessible documentation
and proof that builds into the client’s side of the case. This investigation is crucial for the
next step in the litigation process, sending a demand letter.
Demand Letters and Pre-Trial Negotiation
The attorney or law firm will compose and deliver a demand letter (or eviction notice, or
other forms of notification depending on the type of case). This demand letter takes all
of the information gathered in the informal investigation, presents it to the offending
party, and states desired compensation — typically higher than the attorney expects to
receive. The goal of the demand letter is to convince the opposing party that there is
such good evidence of their wrongdoing by law that the accuser would absolutely win if
the case were to go to court.
The defending party responds with a letter offering a lower amount of compensation —
usually lower than they would be willing to pay — at which point there may be more
counteroffers negotiating a settling price. If they can agree on a price, they settle, and
the case never goes to court. The litigation process stops here in that instance.
Why would someone settle instead of suing for the full amount?
The fact of the matter is: trial is expensive. Once a case goes to the courtroom, costs
skyrocket as rules and regulations become more stringent. Suddenly you are paying for
witness fees and costs, as well as creating mountains of extra work for the attorneys
and law firms involved. Far from being synonymous with a courtroom lawsuit, most of
the litigation process is spent trying to avoid the courtroom and save the money and
time of everyone involved.
Out-Of-Court Options: Alternative Dispute Resolution
If parties cannot reach an agreed settling price, the accusing party (referred to as the
“plaintiff”) and the accused party (referred to as the defendant) will usually seek
“Alternative Dispute Resolution” — options for resolution other than a full-blown
courtroom trial. This typically takes one of three forms, facilitation, mediation, or
Facilitation is typically the least formal of the three alternative dispute resolutions
mentioned here. It involves an unbiased attorney (or sometimes, panel of attorneys) that
helps the two parties negotiate and can decide on certain disputed facts or offer
estimations of actual value of damages. The goal of any alternative dispute resolution is
an out-of-court settlement.
Still an informal affair, mediations are similar to facilitations in many ways. An attorney,
or panel, reviews facts, helps negotiate between parties, and seeks a settlement out of
court. At the end of mediation or facilitation, the mediator will often set a specific dollar
value on the case. This number can then be agreed to by both sides, or the case can
move further towards the courtroom — and high expenses.
Arbitration is the most formal of the three mentioned here. It is also the most expensive,
but still cuts costs relative to a real court case, as rules are less strict. less work is
created for attorneys, and fewer people are involved. An arbitration is similar to an in-
court case, but instead of judge and jury, the case is presented to one or more attorneys
who decide the verdict according to their understanding of the law.
These alternative dispute resolutions are usually conducted pre-trial, but they can also
be invoked mid-trial to cut a case short and save further expense and time.
When most people ask, “What is litigation,” this is the only step they think of. But even a
lawsuit does not entirely take place in front of judge and jury. There are steps to this
highly formal, highly regulated piece of the litigation process.
Similar to the pre-trial investigation process, discovery is essentially a court-empowered
investigation conducted pre-trial. In discovery, the court can mandate that parties
disclose relevant documents or acquiesce to legally structured interviews called
depositions. Both sides gather the facts in as much detail as they can, relying on court
reporters and other law firm staff to help collect and organize the information into usable
Motions are made to the court, typically to establish disputed facts. Rarely, if an attorney
has an airtight case, they can move to dismiss the trial entirely, but this requires such
obvious truth in favor of one party that it almost never happens.
Finally, the trial begins. Trials revolve around disputed facts — things that, if true, will
clearly incriminate the other party by law. The “trier of fact," usually a jury, hears
arguments and presented evidence and simply rules what is and is not true. Then the
legal system can appropriately declare whether laws are broken or not. In a normal jury
trial, the judge is there only to rule on matters of law, as well as instruct the jury on the
laws relevant to the case at hand. There is a jury-less “bench trial” where the judge is
also the trier of fact, but this is less common.
After a trial, if either party is unhappy with the outcome or believes mistakes were made
that, if reversed, would change the outcome, they can appeal to a higher court and
extend the trial process.
Litigation After Trial
Even when the trial is finished, the litigation process is not. Lawyers can still negotiate
how compensation is paid, among numerous other details. Closing a case has its own
set of rules to be followed, but finally, both parties can stop accruing expenses after
their legal dispute.
How long does it take to litigate a case?
Litigating a case can take as short as a few weeks if a demand letter is simply agreed
to, or decades if courts and trials continue getting appealed and extended. This is one
of the biggest costs that needs to be considered in whether you fight a dispute legally —
time. Be prepared to accrue expense in both dollars and hours.
What is the difference between a lawyer and a litigator?
A common question, the simple answer is that all litigators are lawyers but not all
lawyers are litigators. There are lawyers who do business law, oversee contract signing,
or numerous other duties that do not involve resolving or fighting disputes. A litigator is
a type of lawyer whose sole job is representing parties in legal disputes.
How does NAEGELI fit into the litigation process?
NAEGELI offers top-notch legal services to the attorneys who litigate cases. We have
highly qualified administrative staff that helps in investigation and document
management; certified court reporters for depositions, alternative dispute resolutions,
and trials; trial support staff who excel in presenting case evidence in a convincing and
smooth-flowing manner; translators and interpreters, video conferencing experts,
transcriptionists, you name it. At any stage of litigation, NAEGELI helps the best
attorneys do what they do best. Ask your lawyer if they use NAEGELI’s best-in-the-
nation services while they litigate your case.