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Litigation lawyers handle litigation -- a fancy word for any dispute that’s taken to a court. Technically, litigation can be a divorce, a criminal matter or any other dispute. But in practice, most people use the word “litigation” to mean lawsuits. That’s how it will be used here.
Lawsuits in the United States cover a wide variety of disputes based on many, many different areas of the law, including:
- Contracts.
- Personal injuries.
- Intellectual property.
- Civil rights.
- Local, state and federal regulations.
- Taxes.
- Employment and labor.
- Real estate.
- Insurance.
- Securities.
- International law.
Most people divide litigation lawyers into two categories, based on who they usually represent and the laws they work with. Business litigation lawyers handle disputes between businesses, or a business and the government. There are many subtypes of business litigators who specialize in particular types of business litigation. For example, an insurance litigator might handle disputes between insurers and reinsurers, or defend an insurer in a lawsuit from a customer. An intellectual property litigator might sue a company that is infringing on his or her client’s patent.
Consumer litigation lawyers represent individuals who are suing other individuals, businesses or the government. This is most often a claim based on tort law, the type of law that defines non-criminal wrongs that one person could do another. For that reason, consumer litigation lawyers are often called tort lawyers, plaintiffs lawyers or personal injury lawyers. They handle disputes that arise from everyday life, such as car accident lawsuits, slips and falls in a public place or food poisoning from a defective food product.
A lawsuit is intended to help you seek some legal remedy. That can be a court order forcing the other side to do something or declaring the rights of both sides. But usually, lawsuits seek damages -- a legal term for money paid to compensate you for the wrong committed by the other party. In a breach-of-contract dispute, this could be the money you stood to gain if the contract had not been breached. In a lawsuit over a car accident, this could be money to pay for costs related to the accident, your pain and suffering and any injury, permanent disability or death.
Damages don’t have to be strictly economic -- they can also be physical (broken bones, spinal injuries), emotional (pain and suffering, mental anguish, trauma) or intangible “quality of life” losses like the loss of a spouse or loss of mobility due to disability. Money can’t solve these types of problems, of course, but it helps the victims pay bills, get treatment, support themselves and move on in life. In cases where the party you are suing behaved very badly, you may also be eligible for punitive damages -- payments designed to punish the wrongdoer. These payments tend to be very high, but they aren’t always available.
Some disputes that merit a lawsuit don’t really involve financial losses. For example, if you are denied your civil right to freedom of speech, it’s not likely that you suffered a financial loss because of it. If that’s the case, you can sue for nominal damages -- $1 and lawyers’ fees, for example. This allows you to have your day in court and sue for the legal remedies that can fix the problem, such as an injunction against the government’s behavior.
Before filing a lawsuit formally, many litigation lawyers take steps to settle the dispute. They may send letters, hold a meeting or just send a demand to the other side’s lawyers. You will probably be involved in this; your lawyer should certainly ask you to approve any decisions he or she makes. But if that fails, your lawyer will file a formal complaint with the court.
The next stage is discovery, in which both sides ask the other for documents and other information related to the case. You will probably have to turn over copies of documents related to the case during this stage. You may also have to give a deposition, a form of legal testimony that takes place outside court. Generally, this means you’ll go to an office and answer questions about the case while you’re being recorded.
During this time, your lawyer and the lawyer for the other side will also make motions. Those are formal requests to the court. Some of them are routine matters, like resolving a scheduling conflict, but others are strategic. This is also the time to resume settlement talks. With the information you learned during discovery, you may have better information with which to discuss settling your case. If you settle the case, you can expect a payment and possibly some legal concessions. In exchange, you must drop your case. Sometimes you’re asked to make concessions of your own.
If your case doesn’t settle, you’ll eventually go to trial, usually with a jury. Trial can last a few days or many weeks, depending on the case. You may or may not be asked to testify at trial, depending on the case and your own preferences. Your litigation lawyer can tell you more about what’s likely to happen in your case. Once the trial testimony is over, the jurors will come back with a verdict -- a decision. If you won, that verdict will include a dollar amount. There may be a separate phase of the trial to determine how much that dollar amount will be.
If you lose at trial, it’s not necessarily over. If somebody made a legal or administrative mistake, you can file an appeal. Common grounds for appeal are misconduct by the other side, ineffective representation from your own lawyer or a mistake by the judge. This is expensive and time-consuming and may require a different lawyer, so you should only do it if you genuinely feel there was a serious problem.
There are several alternatives to litigation. The simplest, of course, is resolving your dispute informally. If you believe that you and the other party can resolve your dispute by talking about it calmly, you should try it. This is almost always cheaper and faster than pursuing a lawsuit. But if you do this, you should put your agreement in writing and make sure you know your rights.
If you know you can’t resolve the problem that way, you can also try alternative dispute resolution (ADR). That’s a blanket term for out-of-court dispute resolution services offered by private companies, including mediation and arbitration. In both of these, a neutral third party who’s an expert in the legal issues related to your case will help you reach a resolution. In arbitration, this “neutral” makes the decision for you; that decision can be binding or non-binding. In mediation, the neutral helps both sides come to their own agreement. Both parties must agree to ADR, and it costs money, so it’s not for everyone. However, it’s generally faster than going to court.
If you’ve already filed a lawsuit, you can reach a formal out-of-court settlement. In fact, most lawsuits are resolved this way. Formal out-of-court settlements usually involve bargaining by the litigation lawyers for both sides. Like ADR, it’s faster and cheaper than waiting for your trial. But if you want to go this route, keep in mind that there’s no guarantee that the other side will negotiate.
The first thing to know about hiring a litigation lawyer is that not all lawyers do the same job. Like doctors, they specialize. You should look for a lawyer who has extensive experience and knowledge in the type of dispute you have.
Recommendations from friends and relatives are a good way to find a lawyer -- but most of us aren’t involved in that much litigation. For that reason, you can also try lawyer referral services. Most state and local bar associations offer free lawyer referral services to people in their areas. For-profit services are fine, too -- as long as they’re ethical. Make sure you get several names of lawyers in your area with the experience you need.
Once you have some names, you should meet with all of these lawyers. They generally offer free or low-cost consultations -- initial meetings at which you discuss your case and its likely outcome. It’s important to visit several, not just hire the first one, because legal services are a big investment. If you don’t get it right the first time, you may not be able to try the case again. When you go to these meetings, ask the lawyers how similar cases they’ve handled were resolved. Ask for referrals to satisfied clients. Make sure the lawyer treats you with respect and explains everything to you. And make sure you understand how the lawyer intends to bill for his or her services.
Different types of litigation lawyers will ask for different types of payment. In most business matters, litigation lawyers bill by the hour. The price will vary according to many factors: What type of matter you have, how time-consuming and complex your case is, what type of lawyer you hired and where you live. However, you can usually expect to be billed over $100 an hour. A few business litigators offer alternative types of payment, including:
- A flat fee, which is a single set price for the entire matter.
- A retainer, a periodic fee the lawyer charges for being available to you regularly.
- Statutory fees, which are fees set by state law. This is rare.
- Contingency fees, in which the lawyer is paid with a percentage of your winnings. More on this below.
In legal disputes involving individuals rather than businesses, litigation lawyers usually use contingency fees. With contingency fees, clients pay nothing or relatively little at the beginning of the case. Rather, you and your litigation lawyer will agree in writing that he or she will be paid from a percentage of your recovery -- the money you will win with the lawsuit. If you do not win, the litigation lawyer is paid nothing. In addition to providing motivation for the lawyer to work hard and resolve the case favorably and quickly, this fee structure is also considered friendly to consumers. Clients who do not have a lot of extra money, but whose cases are good, may not be able to afford a lawyer if they are asked to pay a high hourly rate. With a contingency fee, they can afford high-quality legal representation.
It’s very important to talk to your litigation lawyer right away about the type of fee he or she charges. You can usually do this at the initial consultation -- the first meeting between you and the lawyer. At this meeting, you talk about your case and the litigation lawyer tells you whether it’s a good case. You should use this meeting as an opportunity to decide whether you and the litigation lawyer are a good match -- personally and professionally. Many litigation lawyers, including almost all personal injury lawyers, offer free consultations.
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