As practitioners of alternative dispute resolution, we compare our methods to litigation, often without pausing to describe what it means to litigate a dispute. Litigation is often the alternative to dispute resolution because it is the default forum to resolve a dispute in the United States and many places around the world. It is what most people think of when they consider the legal field or dispute resolution, as it is the part of a case that is in front of a judge or jury in a courtroom. Yet many people do not have a full picture of litigation, how it works, and what it may require. Understanding what litigation is and what it entails can be helpful in better examining the other options for a dispute and being better prepared for resolution. This article will seek to outline this process for readers so that they can make informed decisions about the process.
Litigation is the process where parties attempt to enforce a legal right through a series of proceedings that occur in front of a judge or jury to resolve the dispute. This is usually the final step in a dispute after the parties attempt to come to a resolution amongst themselves and cannot. It involves a full process, which will be discussed later, that is a formal resolution procedure in front of a decisionmaker. Once the parties reach litigation, they cannot control the outcome of the process and must surrender their dispute to the decisionmaker, either a judge or jury. The term litigation is broad because it encompasses many of the long and complex steps and procedures in the case along the way. If parties are not able to resolve the dispute on their own and have filed a lawsuit, they will be participating in litigation.
Types of Litigated Disputes:
Before diving into the litigation process, it is important to understand the wide variety of disputes that can be litigated. Almost any dispute over a legal right, which can range from a claim over the property to the divorce process to claims of negligence and injury, can be litigated. An important distinction is criminal law, is litigated, but through an entirely different process and the options and steps are unique to criminal matters. This article will focus on the civil disputes that can be litigated. Some common categories of litigated disputes include:
- Family: Family law, which includes divorce, child custody and support, and adoption, finds itself in litigation often. In these types of cases, a judge or jury will be hearing details of a family’s life as they attempt to separate from each other or bring a new family member in.
- Employment: When an employee has an issue with an aspect of their job, whether it be termination, benefits, or discrimination, they will file an employment lawsuit. This type of dispute examines the relationship between an employee and an employer to see if there was any wrongdoing.
- Personal Injury: Another common form of dispute that is litigated is a personal injury claim. Personal injury is a broad term that covers most cases where somebody is harmed by the negligence or actions of another. A judge will be evaluating the fault and how much a person suffered.
- Commercial: Commercial cases involve disputes that arise from commerce, whether it be disputes over a breach of a contract, a dispute over a sale of goods or damaged goods, or disputes about company wrongdoing.
- Real Estate: While real estate is sometimes classified under commercial disputes, real estate disputes involve a different set of rules and types of transactions. These disputes are typically over the sale of land, use of the land, or landlord and tenant disputes.
These are only some very basic categories and do not include all of the possible disputes that may be litigated. However, if a dispute fits within one of these categories, it is likely a dispute that can be litigated.
Basic Litigation Process:
Now that this article has outlined the types of disputes that may be litigated and what litigation is, we will turn to the basic process of litigation. The process involves a variety of steps that will move a dispute closer to a resolution. While the process may seem long and the steps complex and intimidating, it is important to remember that parties are usually represented by attorneys through this process, especially in complex cases. On that note, this portion, and the article in general, is not meant to be legal advice, and a party to a litigated dispute should seek legal counsel if they have questions. This is only intended to provide a brief overview of the process. With that disclaimer, it is time to turn to the process. The steps in litigation include:
- Complaint: The first step in a dispute, besides discovering and identifying the dispute, is to file pleadings. The person claiming a legal right, commonly known as the plaintiff or petitioner, will file a complaint. This begins the process between the parties and will outline the legal right that the plaintiff is seeking to enforce. Once this happens, the plaintiff will serve this on the other party, often called the defendant or respondent depending on the type of case.
- Answer: The defendant will then file an answer or a motion to dismiss. An answer will admit or deny the facts in the complaint and raise any counterclaims that the defendant may have. It will also include defenses to the claims in the complaint. A motion to dismiss will give the court a reason that the complaint is not proper, either based on the substance not being a legal right or the procedure not being followed correctly.
- Conference: Once the pleadings are completed, the court will hold a conference to hear any motions before the court or set deadlines and dates.
- Discovery: Discovery is the process where the parties exchange information that may need to be used in the trial of the case. This process usually takes a long time, especially in complex cases. The parties can ask each other to produce certain documents, answer questions either on paper or in person under oath, or admit facts. They can also ask witnesses to produce documents or answer questions.
- Settlement: While a settlement discussion or alternative dispute resolution process may happen at any time during litigation, it usually happens during or after discovery when the parties have a better understanding of their dispute and the strengths of their case. The parties will either negotiate on their own or work with a neutral to resolve the dispute.
- Trial: If the parties are unable to resolve the case, they will go to trial. This is where each side will present their case to the judge or jury, giving testimony and presenting evidence to illustrate why they are requesting the relief that they are requesting. This is much more involved than this brief description would indicate, but much of the order is completed before trial, so it does not take up as much space in the mind of the litigator.
- Order: Once the trial concludes, the jury or judge will issue a decision that will be put in an order that outlines what the determination holds. This will resolve the dispute.
- Appeals: Once an order has been issued, the parties will have the chance to appeal. This allows them to ask a higher to court review the decision if there are legal issues within the determination. This is not a required step, so it will not always be a part of the process.
By the time the parties have reached and completed the appeal process, the dispute will be resolved by an order of the court. The parties may not agree with the order, but they allowed the finder of fact to decide the case, and the decision will need to be followed.
Litigation v. Dispute Resolution:
As this article mentioned at the outset, litigation is often compared to alternative dispute resolution because they are the options for resolving a dispute. Comparing these two types of resolution can help illustrate the advantages of litigation and when it may be best to avoid litigation. Some of the major differences between litigation and alternative dispute resolution include:
- Guarantee of Resolution: With litigation, the parties are guaranteed to get a resolution of the case, although it may not be what they would have wanted. In dispute resolution, the parties may not walk away with a resolution if they cannot reach an agreement.
- Control: In dispute resolution, the parties have control over the process and the outcome of the dispute because they will be bargaining with each other to resolve the dispute and only resolve the dispute unless they agree. In litigation, the parties hand that control over to the decisionmaker and do not control the outcome.
- Appeals: As mentioned above, an order from litigation can usually be appealed. Dispute resolution has a very limited possibility of appeal that is practically nonexistent because the parties control the outcome.
- Practicalities: Litigation is often more expensive, takes more time, and is more formal than dispute resolution. These differences are a large influence on the many people who choose to use dispute resolution over litigation.
Litigation has its advantages in that it usually resolves a case and can help the parties move on, even in the most difficult situations. However, it can also take a long time and be very expensive. It also requires the parties to surrender control, which many people will not want to do. Yet, litigation can help the parties find a resolution when it seems impossible to reach an agreement, and that is the reason that many people will choose litigation to resolve their dispute.
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