What is litigation? Many people have heard of litigation and have a basic understanding of it.
Generally speaking, it is what happens when two parties disagree about something and make a legal case out of their grievances. Litigation is a way to describe the legal proceedings or actions that take place in order to resolve the situation.
Now, obviously that description leaves a lot to be desired. It doesn’t really explain how litigation starts, what the process is, or how resolution occurs.
That’s why we created the below video. We’re calling it “Litigation 101” because we truly want it to be an introduction to the concept of litigation and how it works in our legal system.
Check it out, then read on to see why – in most situations – you should probably be doing your utmost to avoid litigation.
Bite-Sized Bits of Knowledge: Litigation 101
Hi. Thanks for tuning in for another dose of Bite-Sized Bits of Knowledge, where we give you meaningful information in a short amount of time.
Today, we’re going to talk about litigation. Finally. At long last, we’re going to talk about litigation. And then we’re going to have another video that’s talking about the implications of litigation – why it’s to be avoided.
Okay, so to start out with: litigation usually starts with one party being damaged or aggrieved or wronged in some way – we’ll keep it to civil property or financial damage or preventing someone from doing something that they shouldn’t be doing. Like competing, for example, in a business.
So this party is the plaintiff. They’re going to sue the defendant. The defendant’s going to respond, so plaintiff files a complaint, and you’ll see that the complaint typically has everything under the kitchen sink, because you have to get all your claims out in this particular case. Anything that’s related to the same transaction or occurrence has to go in that complaint, or you forever bar yourself from pursuing it. So that’s why you’ll see – complaints are not just limited to this, that, and the other. Everything that could possibly be claimed is there.
The defendant gets served. They have a period of time to to respond with an answer. The answer says, “Admit, deny, or I don’t know – I don’t have enough information to admit or deny.”
It might also have affirmative defenses, which are where you are saying, “Well, yeah, you’re right. I did do that, but I had a good reason. And that reason is legally, justifiably not making me culpable.” You know, like, “Yeah, you’re right, I did it, but the statute of limitations expired, so I’m not held liable anymore.” Or duress or fraud or necessity – you were helping save someone’s life in an emergency. That could be an example. There are a lot of examples where you can say, “Yeah, I did, it but I have a legally justifiable excuse,” called an affirmative defense. Those have to be raised and answered.
So, now you have a defendant that answers the plaintiff’s complaint. That defendant can also countersue the plaintiff and make it really more complicated – by making the defendant the counter-plaintiff and then the plaintiff the counter-defendant. And you can even bring other parties in to cross claims against other defendants and other plaintiffs on the same side as you. And that gets pretty wild.
So the complaint and the answer are called the pleadings. After the pleadings are done, which is time, you have the discovery phase. You enter into the discovery phase, where the parties try to bubble to the surface facts.
In most circumstances, there’s not a video recording clearly showing what happened and alleviating guessing or alleviating the ability to tell a different narrative. So discovery is meant to to bring this to light in preparation of trial.
Discovery usually consists of, I would say, five main tools. The first tool is a request for production of documents. You can request from other parties to produce emails, text messages, documentations, PDF images, etc. Anything that you can touch or can be printed, you can ask, and it’s a long list. And then they’ll have 30 days to respond.
The request for interrogatories is where you’re saying, “Oh, here’s 30 questions, and you have to answer those questions.” And you have 30 days to respond and work with Council to respond. You are taking a position on those issues under penalty of perjury that you don’t want to conflict with later. So you are being kind of pushed into a position on those interrogatories.
Requests for admissions are simply, “Do you admit or deny XYZ? Were you there? Do you admit you were in this place at this time? Do you admit that you signed this document? Do you admit that this is the document?” Very simple black and white questions that you’re either admitting, denying, or “I don’t have enough information.” Again, you have 30 days to respond.
Subpoenas are another tool in the toolbox of a litigation attorney. If there are phone records, medical records, bank statements, whatever. Anything that someone doesn’t want to give you, you can use the power of the court to subpoena those records, and they will have 30 days to give it to you.
The last thing is depositions. You can depose parties. You can depose non-parties. A deposition is where you sit next to somebody in person at a table – or on Zoom in our current environment – and they are asked questions. You ask them questions, and they have to answer under penalty of perjury. Usually, there’s a court reporter there to to record it, sometimes even videotape it, if it’s not a Zoom – or maybe even if it is a Zoom.
But depositions are not necessarily short, and they are somewhat intrusive. You have to answer every question except for privileged information or harassing things – or if questions are just unclear or compound or confusing. You can object to the form of the question. But other than privilege or form, you have to answer the question.
And if you look at all these tools in the totality, the standard in which the information can come into the discovery process is whether it’s reasonably likely to lead to admissible evidence – reasonably likely to lead to admissible evidence at trial. It does not have to be admissible, it just has to be reasonably likely to lead to admissible evidence at trial.
So the standard is very low, and, therefore, everything comes in at discovery. Probably things you wouldn’t want coming in may come in, even. They won’t be at the trial, maybe, but they’ll come into the discovery process.
So then, once the discovery process is closed, we go to trial, which is either a bench or jury trial. Bench means judge – usually one judge – and jury means more than one person. Usually like six or seven of your peers in your community. And their job is simply to identify the facts. This party’s saying this happened, this party is saying that happened, and their job is to [determine] what really happened. And then the judge applies the facts to the law, and we are concluded.
Now, while it took me six minutes to explain this concept at a high level, it’s going to take two to four years to go the distance. You don’t just get in front of a judge and plead your case. You have to have all the information, all the facts, all discovery, and you have to have it all very organized at a trial to get to the point where a judge actually makes a decision and enters an order – granting all or some or none of the relief requested by the plaintiff or the counter plaintiffs. So this is a process.
I want to mention one more thing, and I’m going to do another video where we’ll talk about some of the consequences of litigation. So all of these stages that I just mentioned have time periods. You have to respond to those time periods or get extensions, and that’s just why it takes a long time.
Because you’re going to get extensions, you’re going to have hearings, you’re going to have motions for extensions. Things are going to take time, and each step will do that – will take time. It’s a long process. It could be disruptive, and it could be very emotional depending on the context. It also could be expensive. And it’s just overall a process that you want to avoid if you can avoid it. And I’ll get into more about that in a minute.
So I hope you found this helpful. Thank you for stopping by and stay tuned for more.
What Is Litigation? Something to Be Avoided
As you can see, asking “What is litigation?” gets you into a pretty complex area. And you can probably already point out several reasons why it might be good to avoid it, just from watching our video or reading the transcript.
Let’s break them down in a bit clearer detail, though, and add in some other reasons.
Lost Time. This is probably the most obvious negative covered clearly in the video above. Litigation is a long, slow, drawn-out process – as we said, 2-4 years! For all kinds of reasons, most people don’t want to have to spend 2-4 years embroiled in a court case if they don’t have to.
Lost Money. As you might imagine, if you’re spending 2-4 years on a court case, it’s going to cost a pretty penny. Keep in mind that you’re not just paying for your lawyer’s time to go to court or the various other legal proceedings that will inevitably pop up along the way. This is about doing research, finding evidence, and putting together the strongest possible argument to help you win your case. Plus, the time you spend focusing on anything related to your case is likely going to mean lost money, because you could have been dealing with other business matters.
Lost Reputation. A lot of things can come to light in litigation proceedings, and many of them are likely not going to be very flattering. Even if most of the records are able to be kept quiet, simply being locked in litigation can be a red flag for people, warning them against working with you.
Lost Emotional Wellbeing. Litigation is stressful, regardless of which side you are on. To truly give yourself the best chance of winning your case, you really have to invest yourself in it, and that can be incredibly draining. What is litigation? Stress and anxiety.
Loss – Plain and Simple. Engaging in litigation is a bit like gambling. You do your best to put together the strongest possible argument, but there is no guarantee that you will ultimately win the case. And even if you technically do, you might not win as much as you hoped – or be able to defend yourself to the extent you wanted. Simply put, there’s risk involved, and when you have to invest so much time and effort into something, risk is an undesirable thing.
We’ll have more on litigation coming soon, but if you are a Florida business owner who is either considering entering into litigation or worried about someone suing you, don’t hesitate to reach out to Haimo Law for advice.