|
What is ‘litigation’? |
|
| A controversy before a
court or a "lawsuit" is commonly referred to as “litigation”. If it is
not settled by agreement between the parties it would eventually be
heard and decided by a judge or jury in a court. Litigation is one way
that people and companies resolve disputes arising out of an infinite
variety of factual circumstances. The term "litigation" is sometimes to distinguish lawsuits from “alternate dispute resolution” methods such as "arbitration" in which a private arbitrator would make the decision, or “mediation” which is a type of structured meeting with the parties and an independent third party who works to help them fashion an agreement among themselves. |
| Is ‘litigation’ something new? | |
| No. Disputes are an
integral part of human history throughout the ages. In medieval times
disputes were sometimes resolved by such methods as a physical "trial
by battle" in which the parties (or their designees) would actually
engage in physical combat; the winner of the battle would have his or
her way. Now that we are more civilized, parties having a dispute they can not resolve among themselves, often engage attorneys to do legal combat in court, which generally avoids bloodshed. Instead of engaging in physical combat, the lawyers prepare the facts supporting their client’s demands, send papers to the other side and present the facts at a "trial" to the decision maker, such as a judge, jury or arbitrator, for decision. We use the term litigation to refer to the entire range of steps that are involved before, during and after an actual "trial". Criminal matters are also considered "litigation", and many attorneys who practice litigation handle both civil and criminal cases, as well as arbitration, mediation and handle administrative trials and hearings. However this section of Free Advice has as its focus disputes between private parties, between businesses between themselves, and between individuals and businesses and the government, known as civil matters |
| Who gets involved in litigation? | |
 |
|
| It can be anyone, and increasingly is. Disputes can arise between two individuals, such as a disagreement between you and the contractor who remodeled your home with inferior material, or two drivers who are involved in an auto accident, or a couple contemplating a divorce. Litigation to resolve the dispute sometimes involves only individuals. In the construction case the litigation would determine if the remodeling was done properly, how much it would cost to do the job right, what damages you suffered because of the improper construction, and who owes what to whom. In the divorce case, the court would decide who gets what, how much support or alimony must be paid, and decide issues of child custody and visitation, if the parties do not agree and settle on their own. Litigation also may be used to resolve a dispute between an individual and a business, perhaps over a defective product, or a lease of property, or between two businesses who may be having a dispute over patent rights or the terms of a contract between them. Litigation sometimes involves disputes between an individual or business with a Government agency. Perhaps the town is trying to "condemn" some real estate you own in order to build a new school, or the state is trying to deny you a license, or you’re having a dispute about the amount of taxes you owe the IRS. Even two governmental bodies can get into litigation, as when New York and New Jersey each recently claimed Ellis Island. |
| Can we settle a dispute on our own? | |
|
|
|
| Yes. There is no requirement that lawyers be involved in the settlement of disputes, even after a lawsuit has been filed. People and companies can resolve their differences informally. If they do, it is often helpful for such informal agreements to be reduced to writing. Where a lawsuit has been filed, if you agree to settle, the settlement agreements generally provide that the suit will be dismissed "with prejudice," which means that it cannot be re-filed. If the issues at stake are important, or a substantial amount of money is involved, it is a good idea to consult a lawyer, as inexperienced persons can inadvertently bargain away their rights. |
| When should I get a lawyer involved? | |
|
|
|
| Depending on the
seriousness of the matter, our advice is to get a lawyer involved as
early as possible, as frequently a lawyer can help you achieve the
results that you want. This is particularly important in an accident
case, as the other side’s insurance company has far more information
than you do, and may take advantage of you. We suggest that you look at
the specific sections of Free Advice that deal with the type of
accident or personal injury involved in your case. Even in commercial disputes, getting a lawyer involved early can help the parties keep perspective so that a simple matter does not get blown up out of all proportion. A good lawyer can keep you from making concessions that would hurt your case if you can not amicably settle, prevent critical evidence from getting "lost", witnesses from changing their mind, and avoid conduct that can land you in trouble, or expose you to dangers you had not considered. |