“Litigation” is a term typically used among lawyers to refer to the process of a lawsuit filed in state or federal court. Procedurally it is governed by statute, by local rules, and by specific judge-initiated courtroom policies and procedures. Substantively, and in its ultimate result, it is governed by the applicable law–statutes and/or judicial decisional law, sometimes called “case law.”
Litigation in all courts proceeds in a generally similar fashion. The process is begun when a complaint and an answer to the complaint are filed with the court. After this, the parties prepare their respective cases by engaging in “discovery” – they serve and respond to written questions and requests for the production of documents and things, take depositions, and serve subpoenas for documents on third parties. Ultimately, and if the parties cannot agree to settle their case, they proceed to trial before a judge or a jury. A verdict or decision is reached. That verdict or decision should follow the legal precedent applicable to the particular court or forum; and it can be appealed to a higher court for a variety of reasons.
Why Use Litigation?
Litigation has its defects and shortcomings. It is attracting an increasing number of critics, many of whom are adamant and vocal. It can be extremely expensive, highly adversarial and emotional; and it has the possibility of rendering both parties to a conflict actual losers at its end. Nevertheless, in many situations, litigation is the best, and sometimes the only, means of resolving a particular dispute. It is for the most part fair, and it is predictable – you know from the start what procedure and what law will apply. And today, in the California state courts at least, litigation is comparatively speedy. You can expect to go to trial in a year or slightly more, often faster than you could have had the opportunity to present your case to an arbitrator or arbitration panel.
In fact, access to the courts, and the opportunity to go to court when necessary, are rights and privileges we all should cherish; and should make and support every effort to preserve.
Virginia Gaburo is a litigator, a successful trial attorney, and has more than 20 years of civil litigation and trial experience.