In law, litigation refers to an action involving two opposing parties for the purpose of enforcing or defending their legal rights. It is most common for parties to settle litigation by negotiating a settlement; however, they can also go to court and have the jury or judge make the final decision.
The term litigation does not refer to the same thing as a lawsuit. It is important to note that litigation includes not only the actions taken during a lawsuit but also those taken before and after lawsuits that are aimed at enforcing legal rights.
In other words, litigation is the process of bringing forward and pursuing a lawsuit, not simply the lawsuit itself. The plaintiffs (the parties who file the lawsuit), as well as the defendants, are known as litigants.
Plaintiffs usually initiate some types of pre-lawsuit litigation before a lawsuit is filed. In most cases, this involves demanding that the party responsible for the alleged injury (the defendant) take steps to resolve the matter.
In the event that the defendant fails to resolve the matter, or if the plaintiff decides to defend their legal right, the process of litigation begins. An attorney is typically hired to represent the plaintiff in this case.
Typically, attorneys are involved in many litigation-related activities before filing a lawsuit. Depending on the circumstances, these can include various things, such as writing a formal demand to the defendant, asking for compensation from the defendant, and filing an eviction complaint with the court.
In the discovery phase, all facts related to the lawsuit are examined in detail, involving mostly exchanges of information and objective evidence acquired by both parties.
The attorneys for both sides may exchange formal requests, such as interrogatories (written inquiries), requests to produce evidence and documents, as well as admission requests (requesting the other party to admit certain facts). Additionally, depositions may occur during this period, where attorneys will request information from the parties, along with third parties, if necessary.
Even though 90 percent of litigation cases don't go to trial, it still happens frequently. A trial consists of each party presenting its case to a jury. In the first round, the plaintiff presents their case, and then the defendant may defend themselves against the accusations.
Once each party has made a claim, the other party has the option of responding or defending it. When both parties feel their cases have been sufficiently demonstrated, both parties rest their cases.
As soon as the evidence and arguments regarding the correct legal conclusion are heard, the court will render its decision. It is referred to as judgment.
Typically, it consists of a written statement containing the facts the court found to be true and the legal conclusion derived from the facts. As part of the judgment, there will also be a statement stating who is responsible for paying litigation costs.
In case one (or sometimes both) of the parties does not agree with the judgment, they have the option of appealing it to a higher court. The appeal court generally does not interfere with the first judge's factual findings (because the judge had the chance to observe the witnesses and assess their credibility). However, it may disagree with the initial judge's legal conclusion resulting in the original finding being overturned or varying.
There is no doubt that litigation can be an extremely expensive process. Even though successful parties can recover their legal costs from the losing party, in most cases, parties will not be able to recover all of their legal expenses.
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