Key Takeaways

  • Litigation includes all actions involved in enforcing or defending legal rights, not just the lawsuit itself.
  • Litigation is a legal action to resolve civil and criminal disputes. It is usually resolved when a settlement is reached outside of court.
  • Litigation progresses through pre-lawsuit actions, discovery, trial, and possible appeals.
  • Alternative dispute resolution (ADR) mechanisms, such as mediation, arbitration, and settlement, resolve disputes outside of court.
  • Outcomes in litigation can include judgments, various remedies, injunctions, and monetary compensation.
  • Lawyers can help decide whether to take a case to trial, conduct research, gather evidence, and make tactical decisions.
  • Understanding litigation is imperative for handling legal disputes well.
  • Find an expert attorney on UpCounsel to guide you through the litigation and lawsuit process.

Although often conflated, a lawsuit is not the same as litigation. Litigation includes not only the action taken during a lawsuit but may also cover the activities before and after a lawsuit to enforce a party’s legal rights.  

In other words, litigation involves bringing forth and pursuing a lawsuit, not just the lawsuit itself. Both plaintiffs (the parties initiating the lawsuit) and defendants may be referred to as litigants. 

This article will explore the stages, types, and processes of litigation and highlights its important role in the legal system. It also considers how to litigate on a budget.

The Meaning of Litigation in Law

In law, litigation refers to actions taken by two opposing parties to enforce or defend a legal right.  

For example, if a company believes a competitor has violated its intellectual property rights, it may file a lawsuit against the competitor to protect those rights. Or if one company believes another has breached a contract, then a company often has to resort to litigation to protect its rights. 

Importantly, litigation can involve both civil and criminal cases to resolve disputes between parties. 

In most cases, the parties settle litigation by working out an agreement, but they may also go to court and have the jury or judge determine the final resolution. 

Stages of Litigation

The four stages of litigation can be defined as such:

  • Pre-Lawsuit Litigation
  • Discovery
  • Trial
  • Appeals and Post-Trial Proceedings

Pre-Lawsuit Litigation

The plaintiff usually initiates certain types of pre-lawsuit litigation before filing a lawsuit.  

Typically, this involves demanding the party that caused the alleged injury (the defendant) take action to resolve the issue.  

If the defendant does not resolve the issue and the plaintiff decides to defend their legal rights, litigation begins. Typically, this involves the plaintiff hiring an attorney to represent them.  Generally speaking, it is always best to retain counsel as soon as a dispute is recognized.  Often, a party waits and tries to work things out on their own.  Then later, the opposing party uses things that that party said when they were trying to work things out against them.  To avoid that, and to help bolster your litigation strategy, counsel is needed as soon as a dispute is identified. 

Consequently, attorneys usually participate in various pre-lawsuit litigation activities.  

These can include:  

  • Making formal written demands on the defendant
  • Demanding compensation from the defendant
  • Filing an eviction notice with a local court

Discovery

The discovery period involves a formal examination of all facts pertaining to the lawsuit, which mostly entails exchanging information and objective evidence between the two parties.  

Attorneys may exchange formal requests, including interrogatories (written questions), demands relating to evidence and documents, and requests for admission (requests that the other party admit to specific facts).  

This period may also involve depositions, which occur when attorneys request information from the parties and occasionally from third-party witnesses.

Trial

Litigation doesn’t often result in a trial, but it can. One reason is because trials are expensive.  Representation at trial alone, including trial preparation, rarely costs less than six figures.   

In a trial, each party presents its case before the jury. The plaintiff presents their case first, and then the defendant can defend their case against the allegations. 

After each party makes a claim, the other party can respond to or defend the previous claim. Once both parties feel they've adequately demonstrated their cases, they rest their cases. 

More than 95% of litigation cases aren't taken to trial.  

Most litigation cases involve initial activity by the attorneys or lawyers and then a long period (months or years) of exchanging legal demands, and the like until the parties begin negotiating a settlement.  

Settlement negotiations are based on the type of complaint and probable outcome for each party. A case goes to trial only if a settlement cannot be reached. After a trial, there may also be a long appeal process.

Appeals and Post-Trial Litigation

Involved parties have the right to appeal if they are dissatisfied with the results of a trial. In many cases, they have 30-60 days from the date of the decision to do so.  

The decision will come from a higher court that reviews the evidence and arguments. The appellate court will look for any mistakes in the legal process that could change the outcome of the case. 

How to Litigate on a Budget

Most parties, including companies, do not have an unlimited litigation budget.  As a result, they need representation that takes into account their budget.  A good litigation strategy should take a budget into account from the beginning.  Otherwise, a party will likely go over their budget or be required to cut corners and not pursue promising leads.  One way to set a budget is to sort out what things may look like for the entirety of the case, and to consider how some months more work will be needed.  This allows a party to make informed decisions at the very beginning of the case.  It also allows them to bypass litigation options with low possibilities of success.

Key Processes in Litigation

Litigation may also include pre-lawsuit negotiations, facilitations, appeals, and arbitrations. It may resolve disputes through the public court system.  

Litigation, as governed by the federal courts, includes several sets of rules, including federal rules, the rules of local courts, and the standing orders from judges.  This is often true in state courts as well. 

The following are some of the key processes that may occur during litigation: 

  1. Investigation is the first step. Through this work, a party can identify what their claims or defenses are, so they can strategize about next steps.
  2. The plaintiff initiates legal action by filing a complaint with the court clerk.
  3. The defendant's personal jurisdiction is obtained.
  4. The opposing parties meet and discuss with each other to define problems, consider settlement, and prepare for discovery and disclosure.
  5. The court orders an early pretrial conference or scheduling order.
  6. The defendant files motions.
  7. The defendant files an answer.
  8. Each party discloses relative documents; the discovery period progresses.
  9. Additional motions may be filed.
  10. The court holds the final pre-trial conference.
  11. The court conducts a trial.
  12. The judgment is rendered, signed, and filed by the court.
  13. Post-trial proceedings may occur.
  14. An appeal may be made. The court may hold judgment, depending on the nature of the situation.
  15. The court considers the appeal's relative arguments.
  16. The court renders a judgment based on the appeal.
  17. Additional proceedings may occur.
  18. The courts enforce judgment.

Alternative Dispute Resolution Methods

Litigation is not the only method to resolve disputes. Alternative dispute resolution (ADR) methods can often provide a more efficient and less adversarial resolution.  

These methods include:

Mediation

A neutral third party, called a mediator, helps the parties reach a voluntary settlement to which they must comply. 

The mediator has an advisory role and may offer suggestions for dispute resolution, but the final resolution is ultimately up to the parties involved.  

Mediation is often less formal than litigation. In addition to being confidential and private, mediation can be a quicker, more cost-effective way to resolve disputes.

Arbitration

In arbitration, an impartial third party, called an arbitrator, hears evidence from both sides and makes a binding decision. The arbitrator might be a lawyer or an uninvolved person with expertise in a relevant field to the case.  

Arbitration can be more formal than mediation but is generally less formal than a court trial. 

Courts do not typically review arbitration decisions because both parties have agreed to be bound by the arbitrator's decision. 

Settlement Conference

The third alternative dispute resolution option is a settlement conference before a judge not involved in the case.  In a settlement conference, the disputing parties reach a settlement without going to trial.  

One party often makes a settlement offer relatively early in the litigation process, which can lead to various outcomes, including monetary compensation, injunctions, or other remedies.

Common Outcomes in Litigation

Litigation can result in a variety of outcomes – judgments, remedies, injunctions, or monetary compensations – and may be decided upon by a judge or a jury, depending on the case.

Judgments

A judgment is the final decision or ruling made by the court in a case resolving material issues of law. It provides the court’s decision regarding the legal claims in the case and may make an order as to what the parties must do.  

Judgments can be final or subject to appeal.

Remedies

Remedies are what the court does to enforce a judgment. In general, the remedies act as relief provided to the winning party.  

There are numerous types of remedies, and these can be divided into several categories:

Compensatory Damages

Intended to compensate the plaintiff for losses they suffered because of the defendant’s actions.  

These damages might include:  

  • Lost wages
  • Medical expenses
  • Other monetary losses 

Nominal Damages

Nominal damages are a small sum awarded for a legal wrong that caused no great injury, or any injury at all, or no financial loss, but the plaintiff is legally in the right.  

Restitution

Restitution compels the defendant to return or pay for property or benefits taken wrongly from the plaintiff.

Injunctions and Monetary Compensation

An injunction is a court order to a party to do or refrain from doing a particular act.  

Injunctions can be: 

Preliminary

Injunctions are issued at the beginning of a case (before the final judgment) to prevent harm and preserve the status quo (i.e., stop things from changing). These injunctions are temporary. 

Permanent

These are issued as part of the final judgment and order the defendant to permanently stop or do certain things. 

Temporary Restraining Orders (TROs) 

Much like preliminary injunctions, but more urgent, issuing a temporary halt to a situation until an actual hearing can be convened. 

Monetary Compensation

One of the most common remedies in litigation, monetary compensation is awarded in the form of cash to the plaintiff as a remedy for their loss, including: 

Economic Damages

Reimbursement for actual financial losses – medical bills, lost wages, and lost property. 

Non-Economic Damages

These damages are awarded for losses such as pain and suffering, emotional distress, and loss of enjoyment of life. 

Punitive Damages

Punitive damages are awarded awarded on top of compensatory damages, and intended to punish the defendant for particularly egregious conduct and deter it from happening in the future.  A party must pay close attention to this category of damages, and address it early in the case.  Otherwise, the party claiming punitive damages will try to use that as leverage to extract a larger settlement. 

Each of these outcomes is intended to mitigate the harm to the plaintiff and ensure justice is served.

The Role of Lawyers in Litigation

The stakes are high in litigation, and choosing the right legal representation gives you a chance at an optimal outcome.  It also helps you manage the significant expenses associated with litigation. 

Your lawyer will guide you through the legal system, gather evidence, make your case, negotiate for you, and be with you every step of the way.  

They are well-versed in the procedural rules of a lawsuit and can help you make informed strategic decisions about how to proceed in your case. 

If you need to hire a lawyer for litigation, do your research carefully. Try to find lawyers in your state who are experienced in the type of case you have and have a record of success.

Conclusion: Understanding Litigation and Its Impact

UpCounsel makes it easy to find the right attorney for your litigation needs. With thousands of lawyers on its platform, UpCounsel connects businesses and individuals with top-tier legal counsel.  

UpCounsel accepts only the top 5% of lawyers to its site, and they average 14 years of legal experience. This includes work with or on behalf of companies like Google, Menlo Ventures, and Airbnb. 

If you need help understanding the meaning of litigation in law or with litigation itself, post your legal need on UpCounsel's marketplace.