Litigation is one of the most frequently misunderstood legal terms. Most people know that the word describes some sort of legal action, but many get it confused with lawsuits or other legal activities. If you want to find the right solution to your legal challenges, you need to understand what litigation means and how the process works. Our guide will explain all the details, so you can know what to expect once you begin litigatory proceedings.
This term describes far more than just a general personal injury case. Instead of referring to a single moment in court, it refers to the complex process of using the legal system to address disputes. It describes all the various court filings and legal communications that you can use to solve a disagreement with another party.
From the instant you start consulting with a California personal injury lawyer to the moment your case is resolved, you are involved in litigatory actions. Essentially, you can think of litigation as the process your lawyer will use to help you resolve your problem. Depending on your situation, litigating may involve one or more of the following techniques:
Every legal case is different, so your lawyer won’t always follow the same exact steps. However, litigatory actions usually involve the same basic process. Here are a few things you can usually expect to encounter while litigating against someone.
The process usually starts as soon as you talk to a lawyer about your case. Weeks before you are filing a lawsuit, your lawyer is already litigating on your behalf. They begin by talking with you about the incident and investigating the situation. Their goal is to get a detailed picture of what happened, so they can figure out what your next steps ought to be.
During the investigation, your lawyer may suggest things you can do to increase your chances of a positive outcome. If you’ve been involved in a car accident, they might advise you to get checked out by a doctor. If your home was caught in a wildfire, they might suggest you get quotes from a smoke remediation expert. The goal of this stage is to figure out what sort of damages you experienced and what you would need to make the situation right.
Despite what you might see in the media, most people don’t go straight from having a problem to filing a lawsuit. Instead, there are a lot of pre-trial negotiations. These aim to help resolve the situation quickly and easily instead of going to court. Lawyers will typically send a formal demand letter that details the situation, describes the evidence they have, and explains what compensation you would like. Depending on your situation, other documents like an eviction notice might be drafted as well.
Negotiations are not usually a legal requirement, and the other party does not have to respond or accept your offer. However, it’s often a good idea to go through this stage. The defending party might choose to respond with their own counteroffer, or they might agree to your request right away. Any discussions you have will only be legally binding if both parties sign some sort of settlement contract. In the rare event that a person does accept your demands, you can get what you want without needing to spend more time or money on litigatory actions.
If the other party didn’t make any sort of satisfactory offer, it’s time to take things to court. Your lawyer will file a motion or petition with the California court system. This is essentially a formal request where you ask the court to step in and help you with your dispute. If you chose to skip any pre-filing negotiation attempts, this will be the time when the other party gets a notice about your intent to sue.
Once you get this process started, you can begin with the formal discovery phase. This is similar to the investigation period, but now you have the court to back you up. Each side can ask the court to require the other party to turn over evidence or respond to various questions. For example, if someone had a video of the incident, you could use formal discovery to access this video.
An important part of the discovery phase is depositions. These are a type of official question-and-answer session. All relevant witnesses will be asked questions and will have their answers documented by a court reporter. Witnesses have to take a legally binding oath before their deposition, so if they lie, they can face perjury charges. All of this information can become an essential part of your litigating.
Once both parties start taking a close look at each other’s evidence, things begin to heat up. Attorneys may make several other motions before your final court date arrives. They might do things like ask the court to throw the case out due to lack of evidence or make a summary ruling due to overwhelming evidence.
During this stage, negotiations get a lot more serious. Instead of simple letters requesting a basic payment, parties might meet in person and go back and forth about their terms. Pre-trial negotiation often involves facilitators. These are unbiased attorneys that hear both parties’ arguments and help everyone to keep things civil. You might also end up trying mediation or arbitration. These are more formal types of negotiation, where both parties argue their side in front of an unbiased mediator and have the option of signing a settlement presented by the mediator.
Roughly 95% of all cases end at this point. It is actually very rare for people to end up going to court. Instead, all the litigating beforehand helps them find an agreement beforehand. Most people prefer these sorts of settlements because they are faster and more reliable. Instead of having to wait and hoping that the court decides in your favor, you can know exactly what you’re agreeing to.
If all the negotiations before the trial do not result in any agreement, it will be time to take things to court. Throughout the entire lead-up to the trial, your attorney will have spent time investigating your case and crafting arguments based on existing laws. During the trial, they will have the ability to put all this effort to use.
Courtroom litigating is about more than just being able to make impressive speeches. In addition to their opening and closing arguments, your attorneys will also present evidence and discuss legal details. They may also present other legal proceedings such as a motion to throw out improperly gathered evidence. After both sides fully present their argument, the judge or jury will make their decision and determine what the settlement ought to be.
Just because a judge or jury makes a ruling, litigatory actions aren’t necessarily over. If you were unhappy with the outcome, you might be able to file an appeal. This often involves your lawyer showing there was some impropriety during the court proceedings that entitles you to a new trial. You might end up getting a new court date with a different court that will hear your case all over again. Even if you’re not interested in appeals, there can be other details to settle. You might need to determine how the settlement is paid or negotiate the timeline for the payment. Litigating will only be complete once your dispute is entirely settled.
As you can see, litigating is a very broad process that involves a lot of very precise details. To get the most effective outcome possible, you need to work with experienced, capable attorneys. At Avian Law Group, we specialize in guiding our clients through personal injury cases. We start by learning about your situation, and then we recommend litigatory actions that could resolve the problem. You can always count on us for assistance with each step of the process.
The Avian Law team handles a variety of personal injury and estate planning cases throughout the Burbank region. Over the 12 years we’ve been in business, we’ve helped clients recover more than $2.2 billion worth of settlements. Whether you’re dealing with a car accident, probate dispute, or another type of legal issue, we provide dedicated, high-quality representation. To schedule a free consultation with Avian Law Group, fill out our contact form or call 818-282-8400.