The Civil Litigation Process
Civil litigation is defined as the legal dispute between two or more persons which are seeking monetary compensation for damages occurred. This is a non-criminal process and encompasses a variety of disputes such as landlord/tenant issues, environmental law, medical malpractice, real estate, education law, workers compensation, personal liability, construction, employment and labor, and intellectual property. Specific attorneys who specialize in civil litigation are known as "trial lawyers" or "litigators" and represent parties in mediation's, arbitration's, hearings, and trials.
Role of a Litigation Attorney
The role of a litigation attorney, or "trial lawyer," is to represent the defendants and plaintiffs in civil litigation cases. Civil attorneys work non-criminal cases on the behalf of businesses, government entities, or private clients and resolves legal issues and disputes such as property, people, and relationships. These attorney's manage all phases of the litigation process from investigating, pleadings, discovery, pre-trial, trial, settlement, and appeal.
Role of a Litigation Paralegal
Litigation paralegals provide invaluable assistance to the civil litigation lawyer and is the backbone of the trial team. The role of the litigation paralegal is to perform legal research, conduct client interviews, create and organize documents necessary for trial, assist with court filings, pleadings, and preparing for trial. The litigation paralegal performs similar functions as the civil litigation lawyer, except, the paralegal is not permitted to practice law in a state or federal court.
Civil Litigation Steps
Case Investigation/Assessment- In most cases, the litigation attorney will conduct an investigation and assessment of the case. For the plaintiff's side, this will determine if there is enough existing evidence to file a lawsuit. For the defendant's side, this will determine what existing evidence is available to defend the potential suit. This initial step may include the civil attorney gathering documents, locating witnesses, taking witness statements, client interviews, and investigation of facts. Often times, litigation attorney's will engage in pre-litigation settlement discussions. This will help resolve the matter before the lawsuit is filed.
Pleadings- Litigation attorneys will next draft a variety of pleadings and motions on behalf of the defendant or plaintiff. The variety of pleadings is a written statement filed by both parties which state formal allegations of the defendant's or plaintiff's respective defenses and claims. According to the Federal Rules of Civil Procedure, the pleadings consist of a complaint, answer, counterclaim reply, answer to cross-claim, third-party complaint, and third party answer. Litigation attorneys may also draft up motions such as a motion to strike, amend, dismiss, or change venue. A motion for judgment on the pleadings may also be drafted.
Discovery- The discovery process tends to be the longest process in building a litigation case. This step begins once the lawsuit is filed and does not end till shortly before a trial is set to begin. The discovery process involves a mutual exchange of relevant facts and information between the parties involved. Typically the devices litigation attorneys use include interrogatories, depositions, request for admission, and request for production. At this time, attorneys will examine any physical evidence, inspect any accident scene, and collect, analyze, and process any facts or information gathered during e-discovery investigations. Furthermore, litigation attorney's will draft and argue any e-discovery related motions such as a motion to compel, summary judgment motions, and/or protective orders. The process of discovery helps attorneys identify issues, gain relevant information, and formulate a case strategy.
Pre-Trial- Prior to trial, litigation attorneys will wrap up the discovery process and begin to prepare for trial. During the pre-trial stage, litigators will attend pre-trial conferences, develop a trial strategy, retain expert witnesses, and consult and advise the client. Attorney's will also use this time to conduct pre-trial dispositions of key witnesses and experts, draft and argue pre-trial motions, and prepare trial exhibits.
Trial- Commonly, the majority of civil lawsuits will be settled prior to trial. For cases that do proceed to trial, litigators will be busy presenting the case before the judge or busy preparing for court the next day. During the trial stage of the litigation, trial lawyers will identify the strengths and weaknesses of the case, collaborate with clients and experts to create a trial theme, develop persuasive arguments, prepare witness testimony, and draft and argue trial motions. During a trial, the litigator will conduct a voir dire, select a jury, and present the case before the court. Conducting a voir dire allows litigators to examine prospective jurors and determine if there is any bias or preconceived notions of innocence or guilt. During the trial, the litigating attorney will also present opening and closing statements, examine and cross-examine witnesses, and create a persuasive story for the judge and jury. Trial lawyers will also use this time to conduct post-trial interviews and prepare jury instructions.
Settlement- Typically, most civil litigation cases will never reach trial and instead are settled beforehand. This helps eliminate the expense and risk of trial. During any time of the civil litigation process, a settlement can be made. During the settlement stage, the litigating attorney will participate in mediation's and settlement conferences with the involved parties and judge, negotiate with opposing parties, and create agreements, releases, settlement brochures, and any other settlement materials.
Appeal- If the outcome of the trial is not a favorable one, the litigation attorney may appeal the case. The trial lawyer will petition a higher court to review the case proceeding. During this process, the litigator will identify and preserve issues for the appeal, draft post-trial motions, draft appellate strategies, draft appellate documents, gather evidence for the appellate record,research procedural methods, and present oral arguments before the appellate court. Often times, if an appeal case is complex or significant, the litigating lawyer may retain the assistance of appellate attorneys that specialize in appeals court and law.