Litigation

What is litigation?

Litigation is a procedure to resolve a dispute. Normally, it consists of some form of court action, such as a lawsuit. Lawsuits are started when one party (usually the plaintiff or petitioner) files a written complaint or petition with the court. The other party (usually called the defendant or respondent) then responds, and the case proceeds through pretrial procedures and ultimately is resolved, either by a pretrial motion or a formal trial. Trial can either be by the court (i.e., before a judge) or by jury (decided by a group of citizens chosen at large from the community). Although most litigation is in court, there are also "alternative dispute resolution" (ADR) procedures, which consist of arbitration and mediation. These are explained briefly below.

What is arbitration?

Arbitration is much like court litigation, except it is slightly less formal and usually much less expensive. It is dispute resolution conducted by private parties. There are many private arbitration providers, such as the American Arbitration Association, that provide full time, experienced arbitrators to decide cases. Commonly, one finds arbitration clauses in construction and labor contracts, although there is an increasing trend to include them in a wide variety of commercial settings. One significant difference between arbitration and court litigation is that in arbitration the parties pay filing fees to the arbitration provider that usually greatly exceed the filing fees for court litigation, and the parties pay the arbitrator for his/her services
(in court the parties do not pay the judge! Judges are compensated by the government.)


What is mediation?

Mediation is a procedure that is, for simplicity's sake, one step removed from arbitration. It is a private, nonbinding method used to settle disputes without have a formal decision on the merits. In common terms, it is a "turbo charged" settlement conference, usually conducted by a private individual (the mediator) who is selected jointly by the parties. Often, parties select a person whom they trust and who has experience in dealing with the issues at hand. For example, parties with a construction dispute may select a mediator to help them sort through the disputed issues that may have arisen in a given project. The mediator usually meets with both parties, with each party separately and attempts to bridge gaps and help the parties come to a mutually acceptable resolution. The key to mediation is that it is voluntary. Although a mediator can be forceful and can speak frankly and firmly with the parties, the mediator cannot force the parties to do things they do not want to do. Having said that, most parties agree that mediation is a very effective tool to resolve cases. Costs can vary depending on the experience of the mediator and the number of parties, the complexity of the issues, etc. Despite what sometimes appears to be a high cost, many people have learned that money spent on mediation is money well spent as it often is less than the parties would spend in arbitration or in court.

What is a summons?

A summons is a document that is issued by the court clerk at the commencement of a case. It's purpose is to advise the defendant (or respondent) that a case has been filed and that there needs to be a reply. In essence, a summons is the document that actually "summons" the opposing party to appear and respond by a specific deadline. Note: If you are served with a summons, DO NOT IGNORE IT! Contact a lawyer immediately so appropriate action may be taken. If you do not do so, the court may enter a default against you and issue a judgment in your absence.

What is a default?

A default occurs is a party does not respond to a summons within the appropriate time frame. Once a person's default has been entered by the court, a judgment may be issued against that person without further notice.

What are pretrial procedures?

These can vary greatly from court to court, but mostly they consist of a process called "discovery." This process is exactly what the name implies. It is a procedure whereby attorneys discover the evidence. The process consists of requesting the production of documents; asking that certain questions be answered in writing (interrogatories); conducting physical examinations of persons or property; and taking live testimony from witnesses (depositions). Other pretrial procedures consist of requests for court action (called motions). These can consist of requests for preliminary relief (for example, asking the court to issue an injunction to prevent or require certain conduct); attaching property to secure a potential judgment; or asking the court to decide all or part of a controversy if the only disputed issues are question of law (this is called summary judgment because it can resolve a case without a trial).

What is a deposition?

Although this has already been discussed above, it is important to specifically review the procedure because it is one of the commonest and most important of the pretrial procedures. A deposition is a procedure by which an attorney for one party may examine a witness under oath. This usually takes place in a lawyer's office, or in the office of a court reporter. There is usually a stenographic reporter present who transcribes every word spoken -- questions, answers, offhand comments. In short, everything that is "on the record" is taken down and typed up in a booklet form. Sometimes, depositions are also recorded by audio or video tape. The reason this procedure is so important is because it pins down a person's testimony. It is very hard to change one's story after a deposition has been taken. If there are changes, they may reflect on a witness's credibility.

What is a subpoena (also spelled "subpena")?

This is a document that requires a witness to attend a deposition, hearing or trial. It must be personally served (delivered to the person being subpoenaed), although in some cases, a party's attorney agrees to "accept service" on behalf of the witness. Note that most subpoenas list the name and address of the requesting attorney. If you are served with a subpoena and the date and time present a problem, you can call the attorney and work out a more convenient arrangement. The point is: DON'T IGNORE A SUBPOENA! There can be adverse consequences (fines or contempt citations) if a witness disobeys a subpoena.

If I am in a legal dispute, am I liable for my opponent's attorney's fees? Or, can I force the other party to pay my attorney's fees if I win?

The answer is, "it depends." In most states, something called the "American Rule" applies with respect to attorney's fees. Under that rule, each party bears its own attorney's fees. There are important exceptions, however, If there is a contractual provision that allows for an award of fees, the court or arbitration may make such an award. This is why in so many contracts, there are "attorney's fee clauses"; if they were not included, a claim could not be made for fees in the litigation. Another key exception to the American Rule is where there is a claim under a statute that provides for recovery of attorney's fees (such as a race discrimination claim under Title VII of the Civil Rights Act of 1964), the same result obtains.

What if I lose? What can I do?

There is a different answer, depending upon whether the case was litigated in court or arbitrated. In court, a losing party can appeal. In the appellate process, the issues usually are whether the evidence supports the factual findings of the trial court or jury, or whether the trial court made an error of law in deciding the case. If the case is arbitrated, there usually is no appeal; the post-arbitration process is that the arbitration award is confirmed by a local court. During that confirmation process, there often are very restrictive grounds upon which a losing party can oppose confirmation of a duly issued arbitration award. Among these are: bias of the arbitrator; failure to consider relevant evident evidence; and an award that exceeds the powers granted to the arbitrator by the parties in their arbitration agreement.. Often times, a duly issued arbitration award will be confirmed as a matter of routine by the court.

What if I win? How do I collect?

When a party wins, whether in court or in arbitration, the result is confirmed by way of a judgment. In some cases, the losing party will pay the judgment voluntarily, in order to clear the judgment from the public record (a judgment can adversely affect a person's credit rating). In cases where the judgment is not paid voluntarily, there are a wide variety of procedures to enforce collection. These are called execution procedures, for they provide mechanisms by which a winning party can execute on a judgment. Among the more common execution procedures are obtaining a lien against real property; garnishing wages; levying against specific personal property, such as bank accounts and other things of value. For debtors, there exist a series of exemptions and limitations that enable a person to protect funds sufficient to provide the "necessities of life," while at the same time making payment against the amount owing. Procedures and exemptions vary greatly from state to state and often require the assistance and advice of a local attorney experienced in collection work.

What role does insurance play in litigation?

Again, the answer is, "it depends." It can depend upon the type of insurance that has been purchased. The key issue will always be the specific terms of the insurance policy in question. In most automobile cases, for example, a person's insurance carrier will have a duty to investigate the claim; defend the policyholder; and pay any judgment or settlement up to the limits of the policy if the claim is covered. When considering insurance in the litigation context, it is helpful to differentiate two issues: the duty to defend (hire and pay for an attorney), and the duty to indemnify (the duty to pay the claim). Sometimes there can be a duty to defend when there is no duty to indemnify. This is because the insurance company has a duty to investigate and defend the insured ¡V that is, a duty to find out what happened and determine if the matter is in fact covered. If it turns out the claim is not covered, the insurance carrier will not be required to pay it, although the carrier may well have a duty to provide an attorney to defend and protect its policy holder. Once again, these issues can be complicated and may well require the assistance of an attorney well versed in insurance and coverage issues.



 
 

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