Understanding Litigation

LITIGATION INVOLVES A SERIES OF STEPS THAT MAY LEAD TO TRIAL

LITIGATION: An action brought in court to enforce a particular right.  The act or process of bringing a lawsuit in and of itself; a judicial contest.

THE PROCESS
A lawsuit, whether filed in civil court or criminal court, is ultimately a process.  Typically, the process is called litigation, and it allows those involved to establish facts and determine whether certain claims can be supported or not before moving to a settlement, or if no agreement can be had between the parties to the lawsuit, taking the case to trial.

BEGINNING THE PROCESS:
In both criminal and civil litigation, the process begins by one side (there can be several “sides” to a lawsuit, and each is called a “party” to the suit, but it will usually be the Plaintiff in civil lawsuits and typically the State in criminal lawsuits) filing paper complaining of the actions or inactions of the Defendant (or Defendants, those defending against the claims).  Once the filing is made, and the filing fee paid (or fees waived due to the indigence of the Plaintiff) the Plaintiff or the State must deliver to each Defendant a copy of the complaint documentation, and the Defendant must answer to the Court.  In the criminal context, a Defendant is typically served the complaint paperwork by local law enforcement agents, who bring the Defendant (often under arrest) to the court to answer to the Court.  In civil litigation, the Defendant merely files paperwork with the court to answer the lawsuit.

DISCOVERY 
Surprise is frowned upon in litigation, so there is a process that allows the parties to “discover” things about each other’s assertions.  This Discovery process, as it is known, allows each side to discover, and consider the strength of their evidence, and of the other side’s evidence, determine whether there is enough evidence to support the claims that have been made, and whether either side should continue with the lawsuit to the presentment of the case to a Judge or Jury at trial. 
Discovery encompasses the taking of statements of certain individuals, the exchange of documentary evidence, and the presentment of questions in writing to be answered by the other side.  Anything any party wants to use before in Court must be exchanged with the other parties ahead of time, or it may be barred.  

EXPERT WITNESSES
If additional support is needed by either side to explain a highly technical or unusual process, event or result, litigation allows for an expert witness to explain to the judge or jury something that might be well outside the knowledge base for the person (judge) or persons (jury) deciding the case.  It is unlikely that a veterinarian would be needed as an expert witness to explain how we get eggs, but a physics expert may be required to explain how the force exerted by a certain piece of equipment caused the property damage complained of when that equipment failed. 

MOTIONS
Motions are written or oral requests made to ask the judge make a ruling.  Some motions request the judge make a ruling that ends the lawsuit.  These are known as Motions to Dismiss, or Motions for Summary Judgment.  If the judge grants the Motion to Dismiss, or the Motion for Summary Judgment, the case is completed for that issue.  Other motions deal with only a narrow issue, such as the production of certain documentation requested in Discovery.  The judge’s decision doesn’t necessary alter the course of the lawsuit, however such a ruling may very well cause one side or the other to pause and reconsider the position taken. 
 
ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution (often referred to as ADR) is an out of Court option for parties to a dispute.  ADR can occur before a lawsuit is filed, while a lawsuit is in process, or after a judgment is rendered.  There are two common types of ADR.

ARBITRATION:  In many instances, especially when relationships are made through contract, the contract will require that the parties to the contract waive the right to a trial in Court, and disputes related to the contract can only be heard in Arbitration.  The Arbitration process differs from Litigation because Arbitration is not generally a public forum.  What goes on in the Arbitration is not available to the public without further agreements between the parties.  Arbitration is favored by companies, often, for that reason.  The Arbitration process is similar to that of Litigation, and the processes can be foreshortened or altered by agreement of the parties.  Ultimately, the Arbitrator, who holds the position of judge in arbitration, makes the ultimate decision about the dispute.  Sometimes there is a single Arbitrator, and sometimes a panel of three that decide the issues in dispute. 

MEDIATION:  Mediation or Settlement Conferences allow the parties to meet with a neutral “mediator” and work out the disputed issues with solutions agreed upon by the parties, and not imposed by a “trier of fact” like in Court (judge or jury) or in Arbitration (single or panel of arbitrators).   Often the parties to a dispute meet together and explain the case from their perspective.  Sometimes the parties remain together to try to reach a settlement.  Other times, the parties separate at some point and the mediator will visit with each to see whether creative solutions might be reached.  The mediator can attempt to persuade, but has no authority to impose any solution that might be available.  Often, each sides gives up something to achieve settlement.  Yet, in settling, the parties choose to give that up, rather than have the judge or jury decide that for them.  

TRIAL
Each party has the opportunity to question potential jurors, if a jury trial is held, and after the jury is selected, may put on evidence, examine witnesses, cross examine witnesses of the other parties, use demonstrative devices to help explain the issues, and make argument to the judge and/or jury.  The Plaintiff or State goes first, and once they have rested, or finished with their case, the Defendant or Defendants get to put on their case.  Once all parties have finished presenting their cases, the jury begins deliberations.  The jury and judge are given a series of questions to answer (the charge) in order to formulate the end result (verdict).  The verdict becomes the judgment once the judge approves it, and this begins the “post trial” activities.

POST TRIAL
After trial, the parties have rights to file certain requests of the trial court, to reconsider the verdict, point out errors that would negate the verdict, and the like.  The Trial Court has a certain amount of time to receive such requests or motions.   Once the request or motions are ruled on by the Trial Judge, the parties must act accordingly.  If errors are pointed out that reverse the verdict, the judge may grant the loser a new trial.  If so, another trial will be held.  If the judge does not grant any motion that results in a new trial, the matter may be Appealed to the appellate court in that jurisdiction.  The appellate court process is primarily a motion process where the parties draft written briefs to explain the errors, or correctness, of the decision from the court below.  Sometimes the appellate court will order the parties to argue their briefs if the appellate court requires more information or needs to ask questions of the parties to clarify positions taken.  There is second level of appellate court in some jurisdictions, but review may be discretionary, or limited for certain parties.