What Is Litigation? | Explore Law Firms and Legal Advice

When a person or company has wronged you, the court system can provide an official forum for finding a resolution. Litigation is the term for the process of using the court system to resolve disputes. It is used across legal fields such as personal injury, real estate, civil rights and more.

“Litigation is a way to use the power of the courts to make somebody pay attention to your rights and to remedy the problem if they haven’t been paying attention to your rights,” says Louis Tompros, partner at WilmerHale and lecturer at Harvard Law School.

There are two main types of litigation: criminal litigation and civil litigation.

In criminal litigation, the government will prosecute someone for a crime. Usually, a district attorney for the state will ask the court to impose some sort of penalty for committing a felony, misdemeanor or criminal infraction.

Civil litigation typically does not involve the government. Instead, an individual or company (referred to as the “plaintiff”) will initiate a lawsuit against another individual or company (referred to as the “defendant”). Civil litigation is an attempt to enforce your rights through using the court system.

Litigation typically involves three stages. The first stage is when the plaintiff, sometimes called the initiating party, files the complaint. The complaint will explain what the plaintiff alleges the defendant did wrong, as well as the requested compensation or remedy to the situation. Often, there is a disagreement as to whether or not the case is valid, and sometimes, the defendant will countersue the plaintiff.

The second stage of litigation is called discovery. This is when both sides will research and exchange information regarding the dispute. This stage is often the longest and most expensive aspect of litigation because both sides will spend extensive time obtaining testimony from individuals, collecting physical documentation, sharing information and completing other tasks.

“That’s the part that really can drag out. It just is a constant search process,” Tompros says. “I often talk about discovery as: You look under a rock to try to find the piece of information that you need, and under that rock you might find 10 more rocks that you need to look under.”

The third and final stage of litigation is the trial phase. This is what most people think of when they hear the term litigation. However, not all litigation will reach this phase of the process. This only occurs if the two parties cannot reach an agreement before going to trial.

“If there are still disputes about the facts after the discovery phase, you have a trial in front of a judge and/or a jury,” Tompros says. “The judge and/or the jury decides the facts and who is right and who is wrong and what kind of a remedy should be imposed.”

Ultimately, the process will conclude with the winning party obtaining a “judgment,” which will be the final decision in the lawsuit. Sometimes this is a monetary judgment that states the winning party is owed a certain amount of money. It can also be an injunction, which would prevent the losing party from certain behavior. Sometimes the judgment will include both.

The amount of time this process takes will vary widely. Civil litigation can last more than a decade, though more amicable and simple disputes can be resolved in less time. But criminal litigation tends to move much faster, often resolved within one year.

“It tends to go much faster because there are important rules protecting the rights of people accused of a crime that guarantees them the right to a speedy trial,” Tompros says.

Civil litigation, in particular, will often not make it through the full litigation procedure. Because the process can be so long and arduous, frequently both parties will agree to some sort of deal to end the dispute before reaching the final phase.

In the United States, trial courts decide the outcome of litigation in the first instance of a lawsuit. Afterward, should a party appeal the outcome of the case, the court of appeals will review the trial and look for errors. However, appeals courts will not be looking to relitigate the case.

“Appeals are not redos of the underlying case,” Tompros says. “An appellate court is just looking to see if the trial court that did the case in the first instance made some significant mistake.”

Appeals are available for both criminal and civil cases. For criminal trials, convicted persons may wish to appeal their convictions if they believe that something unfair happened during the trial. If a civil case makes it through to trial and judgment, the party that did not receive a judgment in its favor would similarly appeal if it believes that something was done wrong by the trial court.

Parties have the right to one level of appeal automatically. Further appeals are up to the discretion of the court.

The primary reason for civil litigation is to force an individual or entity to provide financial compensation or some other remedy for causing harm. This can be a class action lawsuit, a personal injury lawsuit or another wrong that caused damage worthy of financial compensation.

For example, if you are hit by a car, you are likely to rack up medical bills in addition to pain and suffering. In this case, you might bring a lawsuit to try to compensate you for this.

Litigation can also be used in cases such as patent infringement or real estate disputes when you are hoping to change the behavior of an individual, not necessarily looking for financial compensation.

There are also incentives to not bring a lawsuit. Two major reasons why parties would be disincentivized from bringing a lawsuit are the time and money involved.

While defendants in criminal litigation do have a right to an attorney, usually a public defender, individuals in civil litigation do not have a right to an attorney. This means that they will have to pay a lawyer out of pocket, with the likelihood of recouping that investment being very low.

“It takes a lot of emotional energy and a lot of time just to deal with whether you’re the plaintiff or the defendant,” Tampros says.

Mediation and arbitration are the two most common alternatives to civil litigation.

Mediation is a process in which a neutral third-party mediator helps determine the best course of action for resolving a dispute. The two parties will select and hire a mediator who will help the two parties communally come up with a decision. This will typically include who needs to pay, how much they need to pay and any other type of resolution.

“The important thing about mediation is that it’s voluntary, so a mediator can’t force someone to do anything – to take some action or to pay some money,” Tampros says. “But a mediator can be incredibly useful in getting both sides to a reasonable resolution and facilitating that work.”

Arbitration, on the other hand, is a process that more closely resembles the litigation process. Instead of a judge or jury, the parties will hire a neutral arbiter or panel of arbiters. This individual will determine the outcome of a dispute.

“You’re essentially hiring a judge to decide your case,” Tompros says. “You craft the process in a way to go as fast and as inexpensively as you’d like.”

Unlike mediation or litigation, arbitration decisions are final and enforceable. They cannot be appealed, so if you choose to go this route make sure you are comfortable giving up litigation’s appeals process.