What is litigation and how does it work?

Cornell Law School defines litigation as the “process of resolving disputes by filing or answering a complaint through the public court system.” ¹

It’s a common misconception that litigation means that you’re taking someone to court. In reality, the majority of legal matters never make it to a courtroom as most litigation is done and settled before the court is ever called into session.

1. Cornell Law School: https://www.law.cornell.edu/wex/litigation

Litigation is the entire process of settling disputes through the court and other legal processes. A lawsuit is a formal part of the litigation process.

While there is a general structure to the litigation process, there are many different directions a case can take before it reaches a resolution. Some may end rather quickly while others can go through the entire process and even endure some steps after the judgment is made.

To keep it simple, let’s break down the litigation process into 5 steps:

1. Investigation
   This is the informal start of a legal claim that involves a client approaching an attorney with their complaint or case. The attorney or law firm will independently research the case, and if accepted – they will move on to the next step with the client.
2. Demand Letters and Pre-Trial negotiation
   After investigating the case, the attorney will draft a letter and present it to the defending party. This letter should consist of an outline of the case, the facts that have been discovered, and the desired compensation for injuries and damages. This letter and the aforementioned desired compensation can be countered by the defending party and often times a little back-and-forth can happen between both legal parties. If a resolution is agreed upon, the case can be settled before even going to court.
3. Out-of-Court Dispute Resolution
   If both parties cannot come to a resolution in the initial negotiations either party may suggest using alternative dispute resolutions rather than going to a full courtroom trial. These may include processes like mediation or arbitration – both of which are more informal than a judge and jury trial and will typically include an unbiased third party that aids in coming to an agreement.
4. The Courtroom
   At this point, all options to reach a settlement without going to court have been exhausted and the only way to resolve the issue is to go to a formal trial. This involves both parties preparing their case before presenting their arguments before a judge and jury. A judge instructs the jury on the laws relevant to the case while the jury decides on the outcome. Even after a judgment is delivered, either side can appeal to a higher court of law and extend the litigation process if they are unhappy with the results.
5. Post-litigation
   After a verdict is reached, there is still work to be done by both legal parties. If financial compensation was awarded, both sides may negotiate payment terms – among other details.

Keep in mind, this is a general outline of the litigation process. As you can imagine, every case is different and each presents its own unique challenges and obstacles. There are many factors that go into determining how long the litigation process takes, but a general rule of thumb is the more complex, the longer a case will take.

Choosing a lawyer is up to the client.

If you ever find yourself in need of legal representation, remember that you are not required to choose the first lawyer you talk to. Also, you shouldn’t just immediately gravitate to the names you hear on TV or see in ads. Ask friends and family if they have any recommendations. Do some online research and make sure you’re choosing an attorney or law firm that has a successful track record in delivering results for cases similar to yours.

If you ever find yourself needing to have a lawyer review your case you can always reach out to the team at Schiffman Firm for a free consultation.