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Generally speaking, litigation law refers to those disputes that may potentially be handled in court. Litigation could occur in a variety of types of cases, from divorces, to personal injury, to eviction processes. Although most people think of litigation as trial work, the litigation process begins a long time before court. In truth, the majority of litigated cases never even make it to the courtroom.
If you are wondering if a legal matter falls under the class of litigation, think about whether or not a lawsuit would resolve the problem. If it would, the case qualifies as litigation, and a lawyer practicing in this field should be hired. When no controversy exists, or all of the parties are in agreement, such as in drafting a will and business or real estate contracts, the type of law being practiced is called “transactional” law.
Some examples include:
In typical legal disputes, both sides will discuss the matter with each other directly. Once it is understood that an agreement cannot be reached, one or both parties will hire an attorney. After researching the case, the lawyer will typically send a “demand letter” to the other party. As the name of the letter suggests, it describes what the party receiving the letter must do in order to avoid legal action.
The party receiving the demand letter may respond by offering to pay or offer less than requested, issuing their own demands, or they may do nothing. At this point, the future litigants are under no obligation to cooperate or reach an arrangement.
When a legal dispute is unable to be resolved during the initial negotiations, then a formal lawsuit is filed by one of the parties. If an attorney has not been retained by either party, this is the time to do so. Filing and responding to a lawsuit is a very technical and complex process – even the smallest mistake can have a severe impact on the ability of the litigants to successfully defend their interests.
Soon after a lawsuit is filed, the parties will conduct “discovery”, which includes the required exchange of documents and various information between both parties. It often represents the majority of the litigation work carried out during the entire case. Discovery also includes the formal interviewing of witnesses.
Once the lawsuit has been filed and discovery conducted, both parties review everything they learned in discovery, and the defendant will usually file a motion for “summary judgment”. Essentially, the defendant argues to the judge that even if the plaintiff’s claims are true, the law does not identify the situation as one in which the defendant will be held liable. If the judge agrees, the plaintiff loses and the case is finished. If the judge disagrees, the case will continue to trial.
Finally, after the pre-trial stages of litigation, the case will be heard by the judge or a jury. Witnesses will then testify, evidence is submitted, and both sides’ attorneys will give arguments as to why their clients should win. When the trial is over, the losing party has the right to appeal.
In disputes both large and small, a skilled litigation attorney can provide a person with a large advantage. If you’ve been sued, or you need to protect your legal rights, simply hiring a lawyer may cause the other party to think twice. If the case does go on to litigation, your attorney will be there, fighting for you throughout the entire process.
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