The term litigation refers to the actions between two opposing parties seeking a legal determination of their rights or interests by a neutral fact-finder. 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.
A lawsuit is not the same thing as litigation. Litigation does not just include action taken during a lawsuit, but also the activities before and after a lawsuit that work to resolve a conflict between the parties. In other words, litigation involves bringing forth and pursuing a lawsuit along with any appeals, not just the lawsuit itself. Both plaintiffs (the parties initiating the lawsuit) and defendants may be referred to as litigants.
Before filing a lawsuit, certain types of pre-lawsuit actions are usually initiated by the plaintiff. Typically, this involves making demands that the party that caused the alleged injury (the defendant) take action to resolve the issue. If the defendant does not voluntarily resolve the issue and the plaintiff decides to initiate formal legal proceedings to enforce their rights, litigation has begun. Typically, this involves the plaintiff hiring an attorney to represent them.
Attorneys commonly participate in any number of pre-lawsuit activities. These can include a variety of different things, from making formal written demands directed to the defendant, investigating the potential claims and defenses, demanding compensation from the defendant, or filing actions to obtain testimony in support of future litigation.
The discovery period involves a formal examination of all facts pertaining to the lawsuit, which mostly entails the exchange of information and documentary evidence between the two parties. Attorneys may exchange formal requests for information, 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 testimony under oath from the parties and occasionally from third party witnesses.
Some portion of litigation often involves the filing of motions seeking certain relief from the court before the trial. Example of such motions include motions to dismiss (asking the court to throw out the case or certain claims), motions to compel (requesting a court to order a party to participate in discovery), motions in limine (asking to exclude certain trial testimony), and motions for summary judgment (seeking final judgment before a trial when the facts are not sufficiently contested). Motion practice can streamline the case for trial or result in the case being resolved without the need for a trial.
Although 90 percent of litigation cases do not go to trial, it still occurs often. In a trial, each party presents its case before a judge or jury. The plaintiff presents their case first, and then the defendant is allowed to defend against the allegations. After each party questions a witness, the other party has the opportunity to cross examine that witness. When all evidence has been introduced, the attorneys present the judge or jury with their final arguments. Through this adversary system, it is hoped that the judge or jury will find the truth.
The losing party at the trial court level typically has an opportunity to appeal the decision to a higher court. If an appeal is filed, the attorneys submit legal briefs on why the lower court’s decision should be affirmed or reversed. Appellate courts do not generally consider additional facts once the trial court has ruled. Instead, the appellate judges (usually 3 or more) review the written transcripts and evidence to determine if the trial judge or jury made the right decisions. If an error is found, the appellate court can reverse the decision or send the case back to the trial court for a new trial.