There are numerous different types of lawyers in the U.S., such as corporate lawyers, real estate lawyers, or immigration lawyers, to name just a few. However, one type stands out from the crowd due to its specialty, litigation lawyers. So, what are the different types of litigation?
Litigation is very complex, as depending on the specifics of a case, it may or may not fall within the definition of litigation, and therefore may not require the services of a litigation lawyer. There are several different types of litigation, but the six most common ones are business and commercial litigation, public interest litigation, personal injury litigation, mesothelioma litigation, civil litigation, and patent litigation.
What Is Litigation Law?
Litigation law is the set of rules and practices that is followed when resolving disputes in the court system. Litigation usually involves tort cases, but at times has also been used in other types of cases, such as eviction proceedings, or contested divorces. It is very common people tend to equate litigation with trial work, but the litigation process begins much further upstream. In actuality, most litigation cases never go to trial.
One simple rule to determine if litigation is necessary is to review your case and ask if a lawsuit would resolve your issue, if yes, then it falls within the rules of litigation. If there is no controversy or all parties in the dispute are in agreement, then it does not require litigation.
The following are the usual steps taken in a litigation case.
Demand Letters and Initial Negotiation
When the parties involved in a dispute cannot come to an agreement, and it becomes obvious that there is no chance for any mutual understanding, then one or both sides will hire a lawyer. Once the lawyer reviews the information of the potential case, a demand letter will be sent to the opposing party. The demand letter informs the receiving party what they must do to avoid further legal action. The demand may include payment of money, or stop a particular activity, or other potential resolution.
The receiving party of a demand letter can either meet the demands of the letter, counter with their own demands, or do nothing at all. Since it is still in the early negotiation phase, neither side is obligated to cooperate, however, this is usually where disputes are settled informally, due to the potential expense and uncertainty of a lawsuit.
Filing a Lawsuit and Conduct Discovery
If the initial negotiation cannot resolve the dispute, then one of the parties will file a formal lawsuit. This would be the time to hire a lawyer if that has not been done yet up to this point. The specific rules for filing and responding to a lawsuit are complex, and any minor mistake can cause a major effect on the ability of the litigants to obtain relief or successfully defend their interests in the case. For example, certain personal injury claims have a statute of limitation of only twelve months, therefore failure to file a lawsuit within that time frame means the plaintiff loses their right to obtain any compensation.
Once a lawsuit is filed, both sides will now conduct discovery. Discovery is when both parties exchange documents and other relevant information related to the case. This makes up much of the work involved in a litigation case, and it is a very tedious process preparing and responding to discovery requests. This is also the phase where witnesses are formally interviewed or deposed.
Motions, Trials and Appeal
Once the discovery is completed, then both sides will review the information that has been gathered, and at this point, the defendant will most likely file what is called a motion for summary judgement. By filing this motion, the defendant is arguing to the judge that even if the plaintiff’s contentions are somehow true, the law does not recognize the situation as one whereby the defendant will be held responsible. If the judge agrees, the case is over and the plaintiff loses, if the judge denies the motion, then the case will continue to trial.
During the trial, the arguments from both sides will be heard by the judge or a jury. Witnesses will be called to testify, evidentiary exhibits will be submitted, and the lawyers for both sides will now present their arguments as to why their respective clients should win. The trial itself can take weeks, and once the decision has been made, the losing party can file an appeal.
The Common Types of Litigation
Business and Commercial Litigation
Business and commercial litigation occurs when disputes between individuals or business entities is presented to a court. These can be disputes between partners, shareholders, business owners, competing businesses, lenders, vendors, or other parties. Examples of these disputes include breach of contract, breach of fiduciary duty, copyright infringement, fraud, trademark infringement, unfair competition, indemnity, defamation, or construction disputes.
Public Interest Litigation
Public interest litigation is a new field of law. These lawsuits are filed by the courts to protect or maintain the well-being of a community. Any individual or corporate entity whose actions damage or inhibit societal progress may face legal punishment. These lawsuits usually involve environmental issues or environmental law, and public health concerns.
Personal Injury Litigation
Parties who file this type of litigation do so with the goal of obtaining legal remedies for losses suffered due to an accident. The plaintiff seeks financial compensation from the defendant whose conduct either intentionally harmed them or carelessly caused them injury. The financial compensation is usually what is deemed necessary to make the injured party “whole” again and may even include future losses or expenses. The most common lawsuits involve injuries caused by automobile accidents or workplace injuries.
During the 1960s, the general public became aware of the serious health hazards caused by exposure to asbestos. Mesothelioma refers to cancer caused by this exposure, and it has become so prevalent that mesothelioma litigation is now a common legal practice. This type of litigation occurs when companies knowingly expose employees to deadly agents such as asbestos without any warning or protection provided. The most common defendants in these cases are manufacturers of products that contain asbestos, construction companies, mining companies and ship-building companies.
Civil litigation involves disputes whereby two or more parties seek a monetary resolution rather than criminal sanctions. This is a very broad type of litigation that can include tenant and landlord disputes, product liability, personal injury, intellectual property, construction disputes, real estate disputes, anti-trust, medical malpractice, and more.
This type of litigation occurs when one party infringes on another party’s patent or trademark, at which point the infringed party can file a lawsuit to enforce their patent rights and claim illegal use of their patent or trademark. The plaintiff can seek a financial settlement in addition to the defendant must immediately stop using the disputed patent or trademark.
Advantages and Disadvantages of Litigation
It is always recommended to carefully consider all of the viable options available before proceeding to litigation since it can be a lengthy and potentially very expensive process.
- Evidence Rules: When one party wishes to limit the evidence presented, litigation is a good process since it has specific rules that must be followed.
- Unilateral: A lawsuit can be filed without the agreement of the other party; therefore, one party can bring the case to court regardless of whether the other party desires it or not.
- Precedent: Since court cases tend to set precedent, the decision would allow future cases to be decided similarly; therefore, based on previously set precedents, parties will have a certain level of predictability.
- Inability to Choose the Decision-maker: Parties involved in litigation are assigned a judge and/or a jury to decide the case. It is possible you may be assigned a judge or jury that is not sympathetic to your claims.
- Expensive and Time-consuming: Litigation can be a very lengthy process and therefore be expensive, in addition to the lawyer fees, there are also other costs associated with the court.
Alternative to Litigation
As previously noted, litigation can be very expensive, and there is no guarantee the results will be positive. Are there any possible alternatives, yes, options include settlement before proceeding to trial or investigating whether arbitration is a viable alternative solution?
Arbitration is a process of dispute resolution that is heard by an arbitrator or a panel of arbitrators. This is a private process, so the parties involved have some control over the venue and who will be the decision-makers, and there can be more than two parties involved. The arbitrators will decide the outcome of a dispute, which is called an award.
It is important to note that in order to proceed to arbitration, parties must have an agreement to arbitrate, or they both agree to arbitrate. Typically, this arbitration agreement is included as part of a wider contractual agreement. Today, it is quite common to find arbitration clauses contained within contracts. It is also crucial to understand that any contract containing arbitration clauses basically prohibits any potential disputes to go to litigation, which you may challenge in court, but a judge is likely to enforce the arbitration clause.