The term "litigation" refers to the process of taking legal action in a court of law. The word means all legal actions required or taken before, during and after trial affecting an individual's legal rights due to a trial, including pleadings, discovery, investigation of litigation facts, and pre-trial, trial, settlement and appellate representation of the client.
The attorneys of Bale & Associates, Ltd. work in civil trials, and not in criminal matters. Criminal matters involve the State's charges of crime against an individual or company.
However, as is true in any area of the law it is hard to corral all legal work into a specialized subset of the law that affects just that limited subject matter. It is important for litigation attorneys working in the civil law to be able to recognize criminal law issues in order to protect a client's rights overall, even though the civil matter is not intended as a criminal law case.
When referring to an attorney involved in civil litigation, sometimes the terms "litigators" or "trial lawyer" is used because the attorney is performing a service of offering advice managing litigation rather than doing transactional work relating to business or estate planning.
By the nature of the trial practice, litigation attorneys assume a variety of tasks to achieve their clients' litigation goals. These tasks are directed by the client, and so good communication with the client is imperative to the attorney's performance of the client's goals.
Depending on the type of case, the directions of clients, and the attorney's experience, these tasks can be challenging, including the attorney's evaluation of the client's risks at trial, and chances of success.
The attorneys of Bale & Associates has almost 40 years of practice experience in these matters, so rather than list all of them, we invite you to contact us to take advantage of an initial free consultation to discuss your matter and get some of your questions or concerns addressed up front without charge; our goal initially is to evaluate the prospects of your case, and whether litigation offers an acceptable potential solution.
Initial Investigations and Assessments
As mentioned, one of the first steps on meeting with a client is conducting initial investigations and assessments. This is important for both us and you. The initial evaluation provides an assessment of the law and facts in your case, what litigation could entail in terms of costs and time, and the likelihood of success. The initial assessment may include identifying witnesses, gathering important documents, and interviewing the prospective client.
If litigation is pursued, it is always easier to do so while the event is recent, so that witnesses are fresh and records are available. In addition, clients can make a small investment of time and/or money in investigating a matter for litigation only to realize a case has no grounds or that the parties should try to settle well before expending funds on litigation.
Technically pleadings are the initial claims and answers of the parties; these are filed on behalf of the parties start the case with the court and provide an outline for claims and defenses. While not technically pleadings, any action taken by a party to request the court to act is a motion after the initial pleadings. Motions are an opportunity for either party to present litigation-related matters to the court, including motions to dismiss a case, motions regarding the production of discovery, and motions to compel compliance with certain agreements of the parties or with court orders.
An important, but often overlooked part of a civil case by lay persons not familiar with litigation, is the discovery process. The parties engaging in discovery request and exchange relevant information under Civil Rules of Procedure permitting and requiring their participation so as to refine the questions and facts in litigation. Parties may be asked to answer written questions, known as interrogatories, or they may be asked to produce documents or physical evidence. A party or witness may also be "deposed" or questioned in person, usually conducted at one of the litigation attorney's offices. Discovery helps a litigation lawyer plan a trial strategy and craft the best possible narrative for the case and the incident that initiated it.
A litigation attorney will spend the weeks leading up to trial completing and reviewing discovery to prepare for the hearings on this matter. This is a time for litigation attorneys to speak with clients, retain any expert witnesses, attend any pre-trial conferences or hearing, and hone the trial strategy. Often this process is performed on multiple occasions due to the caseload of the court and the demands on the court of civil law cases and criminal law cases being tried in the same court system. This causes multiple cases to be scheduled during the same week and necessitates continuances of your trial and subsequent renewal of the pre-trial preparations in advance of a new date.
Present Case at Trial
It is very rare for a lawsuit to go to trial. Well in excess of Ninety Percent (90%) of the filed civil trials are settled or dismissed before the trial. However, when a case goes to trial, our litigator must present the case, manage the witnesses to ensure they appear at the hearing, and prepare and present the arguments to the judge or jury hearing the case. When a case is heard by a jury, the judge and the jury have different responsibilities. The jury determines what facts apply to the case, and the judge determines what law applies to the facts in dispute. In such cases, litigation lawyers also "voir dire" or interview members of the jury and prepare jury instructions.
Trials can be stressful for all persons involved in the trial and consume significant energy and funds. Trials are also often risky ventures because they deal with the uncertainties of disputed facts and common human characteristics of bias and experience that are present in any human activity in determining the outcome of the trial. While the goal is to try to eliminate the effect of bias, often the judge or jury is not consciously aware that they are engaging in it when the litigants encounter it. In addition, not all witnesses testify the same at trial as previously thought likely, or as they testified at deposition. Even when they do, sometimes new facts arise from other sources, or a new issue is presented that was not anticipated.
Our Litigation attorneys also participate in formal or informal settlement negotiations, mediation, and court-ordered settlement conferences before a mediator or neutral attorney. Often, settlement occurs in the weeks leading up to a hearing, but the parties can settle a case up until the court issues a ruling (or even afterward if there is leverage to suggest that it makes sense); this means settlement may be ongoing through and even during the day of trial, or thereafter.
Appealing a Decision
If the client does not receive a favorable outcome at trial, or if the other party is dissatisfied, a case may be appealed once of right, without having to show cause in advance; this can extend the case the expense of litigation. If either party seeks an appeal or even post-judgment and prior to an appeal, we would draft post-trial motions, preserve matters for appeal, draft appellate documents, and present oral arguments before state or federal appellate courts.
Hopefully, this provides a small introduction to the litigation process and sheds some light on what to expect if you are to pursue a litigation matter. Please feel welcome to contact us and set up your free initial consultation so we may discuss your matter further and see if moving forward with your case is in your best interest. Where we consider it beneficial to you, we may elect to refer your case to other counsel, or opt to include an additional attorney from another office in your case to best provide the service you need; if this should occur we would inform you of this in advance, and with your prior consent.