The term “litigation” is the term used to describe proceedings between opposing parties to enforce or defend a legal right.  Litigation is typically settled by an agreement between the parties, but the proceedings may go to court to be decided by a judge or jury.  Litigation includes pre-lawsuit negotiations all the way through judgment and post-judgment proceedings.  The litigation could take up to several years depending on the complexity of the matter/dispute or the amount of money in controversy from the initial demand letter until the actual collection of a judgment.

No.  In fact, the majority of disputes that arise are either settled before trial or dismissed for various reasons, whether it be voluntary dismissal by the suing party or by order of court.

For the cases that do go to trial, they are either heard by a judge (known as a “bench trial”) or by a jury.  Each side presents its case to the fact-finder and the fact-finder renders a decision based on the facts presented.  In a jury trial, the jury decides the facts and the judge considers and rules on the law.  The judge provides the burden of proof that the Plaintiff (the party initiating the lawsuit seeking to enforce a right) must meet in order to have a judgment rendered in their favor.  In civil cases, the general standard of proof is less than that needed for a criminal conviction.  Civil plaintiffs are generally required to prove their case by “a preponderance of the evidence”, or, in other words, prove that they are entitled to relief more than the defendant (the party defending itself from the lawsuit) proved it is not liable to the plaintiff (usually described in the “51-49” context).

Litigation can become a very expensive process, and it can become expensive very quickly.  There is no exact or average dollar amount as to the entire cost of litigation because there are many varying factors that go into the amount.  For example, the discovery process, the time period in which the parties gather documents, data, testimony to prosecute/defend their cases can last years; those years can end up accumulating hundreds (yes, hundreds) of billable attorney time and costs in hiring court reporters, photocopy services, travel expenses, filing fees, etc., and the total bill can be enormous.  Furthermore, the final bill can grow exponentially with appeals and post-judgment motions.

You should only consider litigation when you have an interest that is important to you to protect.  As mentioned before, litigation can be very costly.  Between discovery (collection of evidence, collecting testimony) and the costs associated with discovery, attorney’s fees, time, and stress, litigation should only be considered as a last resort.  Resolving issues outside of the courtroom and/or litigation arena should always be your first option.

Furthermore, litigation is a strategy that should be used when you have a high level of confidence in your case.  Making good on a threat to litigation solely to make a point rarely (if at all) effective.  Bluffing may cost you more than a lost case – it could leave you exposed to sanctions (penalties imposed by the court) and having to pay your opponent’s attorney’s fees and costs in defending their case.

Lastly, once you step into litigating your case, you must be fully committed to the cause.  Litigation is not a time to dip your toes in the water; instead, you must be willing to dive into the case.  All parties involved on your end must fully understand the nature of litigation (with respect to time and money) and should be on board with full support.

Thankfully, there are alternatives to litigation and there are methods of shortening the time in which the case is in the court system.  Click here (hyperlink to alternatives to litigation) for more.

Yes.  In fact, many of the “alternatives” are actually within the context of the litigation process.  For instance, if you believe you have been wronged, your attorney can simply send a demand letter under a specific statute to demand payment or relief or the parties can simply conduct informal negotiations and attempt to come to a mutually beneficial resolution.

Otherwise, there are other avenues of getting relief without going through the lengthy and costly litigation process, i.e., mediation or arbitration.

Mediation

Mediation is the process where a third-party mediator (not affiliated with any of the parties) and simply conducts a conference with the disputing parties to assist in the reaching of an agreement.  If the parties come to an agreement during the mediation process, a settlement agreement is usually drafted and signed by the parties, thereby creating a contract.    There is no judgment or ruling involved, as the mediator is a neutral third-party simply there to conduct the conference and to ensure each party has the opportunity to present their offer(s) to the other party.

Arbitration

Arbitration is a process that is similar to mediation in the sense that it is done outside of court.  Arbitration usually consists of a panel of neutral third parties that listen to each party’s side of the case and render a decision, similar to a panel of judges.  However, the decision that the panelists make is binding.  Arbitration usually arises in contract disputes where the contract states that the method of dispute resolution is to be arbitration.  However, arbitration is a method of alternative dispute resolution that is available to all.  The costs are lower and the process is meant to be shorter compared to full-blown litigation.