Most people have engaged with the legal system in some way during the course of their lives, whether in small ways, such as signing a “terms & conditions” clause, buying a house, or getting married, or in large ways, such as a dispute over inheritance, divorce, or criminal matters. Still, when we find ourselves in the midst of a dispute that requires a greater exposure to the legal system, the system can feel unfamiliar and overwhelming. This is where attorneys will often step in to fill the gap. Attorneys are people who have spent years studying the law and learning about the systems that a case will move through. While there are many stereotypes about lawyers, finding a good attorney to help you can change the trajectory of your case.Attorneys often have an area of law that they will practice. This is because the legal system is vast and each individual area of law has many ins and outs that take years to master. Some lawyers will practice criminal law—as a prosecutor for the state or a defense attorney for the defendant. Other attorneys will practice civil law—everything else that is not criminal, including business, real estate, probate, and family law. Attorneys in civil law may be further divided into transactional and litigation attorneys. Transactional attorneys handle issues like drafting contracts, merging companies, and incorporating business entities, while litigators work on disputes that are in court or on the way to court. This article will further define civil litigation and outline the role and responsibilities of a civil litigation lawyer.
Civil Litigation Defined:
There is a brief definition of civil law above—anything not criminal—but a more exact definition of civil law is evident when civil law and criminal law are contrasted.
- Parties: In criminal law, there are usually two parties—the state and the defendant. In civil law, there are usually two or more parties that are people or entities that relate to each other in some way.
- Outcomes: In criminal law, the outcomes are usually penalties, such as time in jail or prison or fines. In civil cases, the outcome sought is usually compensation or other equitable remedies.
- Standard of Proof: In criminal law, the standard of proof is beyond a reasonable doubt. In civil law, the standard of proof is the much lower preponderance of the evidence, which only means that one party is slightly more convincing than the other.
- Subject Matter: In criminal cases, the subject matter is the crime and whether or not the defendant committed the crime. Civil law can be about anything from family disputes to business to tax, as long as there are no criminal accusations involved.
With a working understanding of civil law, we can now discuss the litigation aspect of civil law. Civil litigation is the process in which these matters are resolved before the court. Litigation also includes a variety of processes and steps besides appearances in a courtroom. Litigators often move a case from the beginning through settlement negotiations, alternative dispute resolution if used, pleadings, and finally into the courtroom through a resolution. These steps will be discussed in the next section, but it is important to know that litigation is larger than just the courtroom. Civil litigation is the entire process of a case that moves through the court system.
The Roles of a Civil Litigator:
As mentioned above, civil litigators participate in the process of a case from the beginning through to the resolution. Depending on the size of the organization or firm that a lawyer works for, the process may include one attorney to see the case all the way through, or multiple attorneys to participate in each step of the process depending on their specialty or availability. However, whether is it one lawyer or many, a civil litigation lawer will guide a client through these steps.
A case will usually begin at a meeting with a client. Sometimes clients are referred, and other times clients find the office through their own searching. Whatever the case, the first attorney to contact a lawyer will listen to the details of the dispute, ask questions to determine the issue and cause of the dispute, and evaluate the potential merits of the case. It is important for the attorney to get as much information as possible to decide if the case is one that they or their firm are able to take on.
Advice or Retainer:
In most firms, towards the end of the meeting, the attorney is able to decide whether or not they will be able to take on representation. At this point, the civil litigator will describe the decision to represent or not. If they are unable to represent, they will often refer the party out and possibly offer some legal advice for the time between. If they are able to represent, they will likely discuss the details of the representation and what they are able to do for the person. They may personally take on the case or give the case to another attorney whose skill set is better suited for the litigation.
Preparation: After getting a case, an attorney will begin to prepare for the trial. This will often include drafting pleadings to be filed with the court, discovery to gather evidence that could be used at the trial, preparing witnesses, and learning the ins and outs of the case.
Alternative Dispute Resolution Options:
In some cases, the parties would benefit from alternative dispute resolution processes, such a mediation, conciliation, or arbitration. Parties can be represented in these proceedings, so an attorney may join the parties. However, especially in mediation, the focus of the resolution process is on the parties and their ability to come up with a solution that works for everyone involved, so the role of attorneys may be limited in this case. A case may end here if it is settled through these processes.
Less formal than mediation or arbitration, the parties may also have discussions to try and resolve the case outside of court. This is often communicated through attorneys to ensure that one party is not taking advantage of the other and that the parties remain cordial. An attorney will likely advise their clients about the settlement offers and share opinions about whether or not the offers are reasonable. If the parties are able to come to an agreement, the case will end here.
If the parties are unable to settle, the case will likely proceed to trial. This is where all of the work that the civil litigation attorney has done will be presented to the decision-maker, a judge, or a jury. The attorney will present the evidence that they have gathered and convinced the decision-maker that their client has a better case and should receive compensation.
Once the trial is finished and a verdict is given, the litigator in charge of the trial will likely be relieved. They may help enforce a judgment if the court rules in favor of their client. If their client is unhappy with the verdict, the lawyer may appeal the case, but often, especially in big firms, an appellate attorney will take over the case for the appeal.
Determining if a Case Requires an Attorney:
Attorneys are expensive to hire and retain, so parties may often feel like it would be better to proceed on their own through the suit. However, there may be some situations in which a lawyer will be able to better serve the interests of the parties and understand the full situation at hand. While no two cases are the same, parties involved in a civil litigation matter may need to hire an attorney in the following situations.
Risk of Large Loss:
One of the biggest signs that hiring an attorney may be a good idea is when a party could lose a large amount of money if they lose the lawsuit. A lawyer can help to mitigate loss.
If the result of a lawsuit may cause big shifts in other areas of life, an attorney may be able to help lessen the effects of those changes. This includes complicated divorces with children or large assets or for estate planning or administration.
Complicated Subject Matter:
If the subject matter of a lawsuit is something that the parties are not familiar with it may be best to retain an attorney specializing in the area. This can include business contracts or organizations, tax law, or patents. This could also be something that makes one of the parties feel overwhelmed. If a party feels confused or unsure of their position, hiring a lawyer to simplify the process may be beneficial.
If the opposing party is represented, it is often the best practice to retain an attorney to stop any advantage the represented party may have.
When people come in contact with the legal system, we often rely on attorneys to help us, advise us, and represent us. Navigating a civil lawsuit can require a single attorney or a small contingent of attorneys to carry the case through to a resolution, requiring skill and knowledge at each step. In some cases, it may be reasonable for a party to proceed without an attorney, but certain factors may require the responsibilities of an attorney to reach a resolution. Civil litigation attorneys play many important roles in the lifecycle of a case, and knowledge of their role is important to find the best attorney for your case.