Litigation is the formal court process through which one party attempts to enforce or defend its legal rights against another party in a lawsuit. There are many types of litigation.
- Criminal Litigation
- Bankruptcy Litigation
- Family Law Litigation
- Business Litigation
- Trust and Estate Litigation
- Personal Injury Litigation
There are a lot of types of litigation. Personally, I practice business litigation and estate and trust litigation.
Business litigation is when two or more parties to a business relationship or transaction become adverse to one another and one party sues the other party to enforce their rights pursuant to that transaction or that relationship.
Trust and Estate Litigation
Trust and estate litigation typically involve beneficiaries of a trust or a will who believe they should have received more or at least some inheritance from a will or a trust.
First people are often times surprised to learn how long the litigation process can take. Even a simple litigation case can often time go for a year. More complex litigation cases often go two or three years. That being said the first stage of the litigation process is the pleading stage.
The pleading stage begins with a complaint. A complaint is a document filed by the plaintiff in a lawsuit which lays out the factual allegations against the defendant or defendants. The defendant received this document. It will then file either an answer or a motion to dismiss pertaining to the complaint. A motion to dismiss means that the defendant is stating that the plaintiff’s allegations fail to give rise to a cause of action in the State of Florida. There are various reasons one can do this and eventually most lawsuits will get to an answer filed by the defendant. Once you have a version of the complaint that’s accepted by the court and an answer to affirmative defenses filed by the defendant that closes the pleadings stage of a lawsuit.
The discovery stage is the longest stage of the litigation. This is the stage of litigation where facts and information are exchanged between the parties of a lawsuit. There are multiple ways by which parties exchange and obtain this information. There is written discovery. There are depositions. There are multiple types of written discovery. The common ones request for production where one party makes a list of documents and things they would like to receive from the other party sends it to the other party. That party then supplies those documents. There are three types of discovery:
- Requests for admission
Interrogatories are simply written questions. One party will write the questions serve them on the other party the other party will then serve responses to those interrogatories.
Requests for admission
Request for admissions one party will write out a statement serve it on the other party. That party will then either admit that the statement is true or deny.
Depositions are when a lawyer sits down with a witness to the case and asks them questions. There will be a court reporter present to write down everything that is said. It’s all under oath and often times those are videotaped. Those are the common types of discovery. As stated this is the part of the litigation process that takes the longest amount of time.
Dispositive Motion Stage
A dispositive motion is a motion which can end a party of or the entire lawsuit. Typically a dispositive motion is called a motion for summary judgment. What this means is there are no longer any facts in disputes. Through the discovery process, it has come to light that all of the facts are actually in agreement and the only issue remaining to be resolved is an issue of law. Issues of law are resolved by the judge. So one party will file their motion for summary judgment the other party will obviously dispute it.
Then the judge is going to render a ruling and say that “yes I agree. There are no factual disputes and I’m rendering a decision on either this particular part of the lawsuit or the entire lawsuit”. Or the judge is going to say, “I do not agree with your motion. There are issues of fact and this case will proceed to trial”.
There are two types of trial: You have a bench trial and a jury trial.
- In a bench trial, the judge is the person who determines who is going to win or lose the lawsuit.
- In a jury trial, it is the jury who will decide who wins or loses the lawsuit.
The plaintiff and defendant will each put on their case. There is an opening statement made by each side then witnesses are presented and they answer questions before either the judge or the jury and then a closing takes place. After which either the judge is going to issue a verdict or the jury is going to issue a verdict. Those are your types of trial. That is the litigation process.
A case can settle at any time. In fact, nearly all cases settle somewhere around the percentage of 98 to 99 percent of cases settle. So at any point in time during that litigation process, I just described the parties can have settlement discussions and reach an agreement that resolves the lawsuit.
The Mediation is a very effective form of resolving lawsuits. Mediation is when parties hire a neutral third party mediator to come and assist them in attempting to reach a resolution of a lawsuit. Mediation is so effective that it is usually court ordered in most cases.
In mediation, it usually takes place over the course of a day. All of the attorneys and parties to the lawsuit will meet in one place with the mediator. There will be a brief opening statement made by everyone. The mediator will hear all the openings and then the parties will disperse into separate rooms.
The mediator will then meet with each party, get their views on the case what that party is willing to accept or give to resolve the lawsuit and will take the information to the other parties of the lawsuit. This process will continue until hopefully, the parties reach an agreement they all can live with and the case is resolved. So throughout the process, you can attempt settlement discussions. Often time’s mediation occurs at or near the end of the discovery stage but all of that is available to you throughout the entire litigation process.