The Role of the Litigation Attorney Before, During, and After the Court Process
Are you embroiled in a business dispute? Going through a divorce? Did you get hurt in a car accident?
All these are situations where it might be necessary for you to seek the services of a litigation lawyer. In the last few decades, US has earned a reputation as the most “litigious society” owing to the tremendous increase in lawsuits.
Today, Americans are turning to lawsuits for the resolution of even the smallest problems, from neighbor disputes to spilled hot coffee. With Americans having such a high affinity for lawsuits, you have possibly had to deal with a lawsuit. Even if you haven’t, you might find yourself having to deal with a lawsuit at one time or another.
This can be quite stressing.
Not only do you have to deal with stresses of the issue behind the lawsuit, you also have to deal with the challenges of navigating the courts and litigation processes. If you want to successfully navigate these processes, you might need the services of a litigation attorney.
Therefore, if you find yourself dealing with a civil lawsuit, you could end up being one of the millions of people who go to court without legal representation.
Without a litigation attorney, not only will it be a challenge to navigate the litigation process, you will also reduce your chances of winning the case by half.
On the other hand, having a litigation attorney makes the litigation process simple and increases your chances of getting a favorable outcome for your case.
If you have a looming court case, you might not be sure whether or not you need a litigation attorney. To make it easier for you to make the decision, we are going to look at the role of the litigation attorney and how they can help you with your case.
WHO IS A LITIGATION ATTORNEY?
Litigation attorneys are legal experts who represent plaintiffs or defendants in civil cases. Litigation attorneys can also be referred to as trial lawyers or litigators.
Litigation attorneys are responsible for managing all the phases of a litigation, including activities like investigating the details of the case, gathering of evidence, interviewing of witnesses and other parties, reading depositions and analyzing pertinent information, pleadings, settlement, and the appeal process. The litigation attorney will also help you to make sense of the Latin phrases and complex jargon that is the hallmark of legal matters.
The tasks carried out by the litigation attorney will depend on the nature of the dispute as well as whether they are representing a plaintiff or defendant.
Since litigation attorneys are experts in law and since they are conversant with all the procedural tricks of the legal process, having a litigation attorney will put you in the best position to win your case. In return, they get some monetary compensation once you win your case.
Some of the types of civil lawsuits that litigation attorneys can handle include:
- Personal injury claims
- Employment lawsuits
- Environmental law
- Divorce and other family law disputes
- Product liability suits
- Real estate lawsuits
- Landlord/tenant lawsuits
- Venture capital
- Business disputes
- Medical malpractice
- Intellectual property
- Anti-trust litigation
- Shareholders oppression
- Estate litigation
- Constructions liens
- Builder’s liens
- Mechanical liens, etc.
Many lawyers often specialize on one area, such as family law or real estate, instead of handling all kinds of civil cases.
DUTIES AND RESPONSIBILITIES OF A LITIGATION ATTORNEY
The litigation attorney helps you with all the processes pertaining to civil lawsuits. Some of the tasks a litigation attorney might help you with include:
Initial Case Assessment And Investigation
This is a consultative stage. During this stage, your litigation attorney will spend time meeting with you and advising you. They will conduct an initial case investigation and try to find out if the available evidence is enough to file a strong suit. They will review details about the case and come up with a strategy on how to handle the case.
They will advise between settling the case out of court and letting it go to trial, depending on the specifics of the case. If you are the defendant, the litigator will assess any evidence that they can use to defend you.
Some of the activities that the litigation attorney will engage in in this phase include locating witnesses and taking their statements, interviewing you (the client), collecting documents and establishing the facts of the situation that led to the dispute. The litigator might also engage with the other party and attempt to settle the matter without the need to file a lawsuit.
Assistance With Documents
One of the things that makes the court process challenging is the sheer number of documents that need to be filled or handed in. Failure to hand in some of these documents or handing them late can greatly change the dynamics of a lawsuit.
Litigation attorneys are conversant with the process and are aware of all the documents that are required, as well as the specific timeframe within which they should be completed. Some of the documents that a litigation attorney might help you with include:
- Further and better particulars
The lawsuit process requires several pleadings and motions to be filed with the court, either on behalf of the defendant or the plaintiff. If you are the plaintiff, your litigation attorney will initiate the lawsuit by drafting and filing a complaint and a summons.
If you are the defendant, your litigation attorney will need to draft an answer and sometimes a counterclaim, depending on the complaint filed by the plaintiff. Your litigation attorney will also help you with investigating the allegations filed in the complaint in order to come up with appropriate responses.
In addition to pleadings, it is also the responsibility of litigation attorneys to draft pre-trial motions, such as the motion to change the venue of trial or the motion to dismiss a piece of evidence.
This is the phase where the two parties involved in the lawsuit exchange any information that might be relevant to the lawsuit. There are several tactics and devices that your litigation attorney might use to gain this information from the other party. These include:
Interrogatories: This is one of the most common methods of gaining information during the discovery phase. An interrogatory is a series of written questions that is served to the other party. It is compulsory for the other party to answer these questions in writing. The answers to these questions can then be used in court in case the other party changes their story later. Providing incorrect information in an interrogatory can lead to one being charged with perjury.
Depositions: This involves asking the other party some oral questions in an out-of-court setting. Depositions are answered under oath and can be reduced to written transcripts which can later be used in court in case the deponent (the one being questioned) fails to appear in court or if they change their story.
Requests for production of evidence: This is where the litigation attorney asks the other party to make available any physical evidence that might be relevant to the lawsuit. This is especially useful for gathering pertinent documents, such as letters, receipts, contracts, and so on. A litigator might also hire an e-discovery professional to help them gather and analyze electrically stored information (ESI) from the other party.
Requests for admission: This involves asking the other party to admit or deny the certain facts of the lawsuit in writing and under oath. The aim of requests for admission is to save time and reduce the number of issues that might need proving during trial.
Once a lawsuit has been filed and accepted, the litigation attorney will need to wrap up the discovery phase and conduct some pre-trial activities to prepare for appearance in court.
These activities include gathering the names of potential witnesses, arranging for and conducting depositions by experts, interviewing key witnesses, examining evidence that will be used as exhibits in court, preparing evidence to be used in court, coming up with trial strategies depending on the available evidence and facts, attending pre-trial conferences, and drafting and arguing pre-trial motions.
Representation In Trial
If the case proceeds to the trial stage, it is the responsibility of your litigation attorney to represent you in court. Before the trial, the litigation attorney will need to come up with a trial strategy that will maximize the chances of winning the case.
Part of crafting the trial strategy is to perform a SWOT analysis of the case and come up with persuasive arguments.
The trial stage begins with a process known as vior dire where the members of the jury are selected.
Once the court proceedings are underway, the litigation attorney will present your case in court, make opening and closing statements, present any relevant evidence, examine and cross-examine witnesses, argue motions and generally craft their version of the case.
The litigation attorney might also interview the members of the jury post-trial.
Sometimes, cases do not get to the trial phase. Instead, the two parties come up with a way of settling the dispute out of court in order to do away with the expense and risk of going to court.
A litigation attorney can help you settle a case without the need to go to trial. To do this, the litigation attorney will negotiate with the other parties and try to come to a reasonable settlement.
Sometimes, the litigation attorney might even need to take part in mediation and settlement conferences with the judge in charge of the case.
Once an agreement has been reached, it will be the responsibility of the litigation attorney to create agreements and releases based on the agreement. More often than not, it is better to settle instead of going to trial.
Sometimes, the trial might not go as you expected, creating the need for an appeal. However, a case cannot be appealed simply because it didn’t go as you expected. Instead, there should be evidence to show why the court’s decision was wrong.
For instance, if some evidence was dismissed when it should have been admitted, this can act as grounds for an appeal.
If you decide to appeal the decision of the court, it will be the responsibility of your litigation attorney to draft post-trial motions, identify grounds for the appeal, collect evidence for the appellate record, come up with strategies for the appeal, draft documents for the appeal and present your appeal before the appellate court.
BENEFITS OF HIRING A LITIGATION ATTORNEY
Below are some reasons why it might be in your best interests to hire a litigation attorney to help you with your civil lawsuit:
Peace Of Mind
If you ask someone who has just represented himself in court, one of their top regrets is usually not getting an attorney to represent them. One thing that most people forget is that representing yourself puts you to close to the case. Your emotions cloud your judgment and make it hard for you to represent yourself to the best of your ability.
Actually, most civil disputes end up becoming lawsuits because one or both parties are too emotionally invested in the dispute to come to an amicable solution.
If you chose to work with an attorney, you will have the peace of mind that someone experienced and knowledgeable is doing their best to ensure that you get a favorable outcome from the case. You won’t get out of the case with regrets.
It Might Save Costs
This might be hard to believe, considering that you have to pay money to hire a litigation attorney, who can sometimes be rather expensive. However, hiring a litigator will save you money in the long run.
A litigator can help you save money in terms of penalties and fines. A litigator will also increase your likelihood of getting a favorable judgment, helping you avoid paying anything to the other party or even ensuring you get some compensation from the other party.
Working with a litigation attorney increases the chances of everything going well throughout the case. Litigators understand the law and court procedures, therefore they are better placed to ensure that everything is done properly.
They know what to share in court and what to keep confidential. Even in the event that things do not go as expected, having someone knowledgeable in your corner will help you take further action to ensure the final outcome is favorable to you, which is something you might not be able to do on your own.
Avoid Incriminating Yourself
When testifying in a court of law, you should be very cautious, especially when the other party has legal counsel while you don’t. The other party’s legal counsel can easily trap you into revealing things that would end up with you incriminating yourself.
However, if you have a litigation attorney, he or she will coach you on what to say in court and what not to say, as well as how to say whatever you have to say. This way, you litigation attorney ensures that you do not anything that might incriminate you or dilute the strength of your argument.
Easily Navigate The Court Process
One of the greatest benefits of hiring a litigation attorney is that they will help you navigate the court process easily and properly. It doesn’t matter how much you prepare for the lawsuit by yourself, you will find yourself in need of guidance at some point. Researching and reading online can only take you so far.
Only a qualified and experienced litigation attorney will be able to come up with the best strategy to ensure that you get a favorable outcome for your case. This is made even more challenging by the fact that many legal activities are quite complicated.
Even the smallest activities in court require that certain procedures be followed. It is as important to follow these procedures as it is to correctly argue your case. Failure to properly follow these procedures can have your case thrown out or the key evidence you were relying on dismissed.
According to this study, litigants representing themselves in a civil lawsuit have to perform almost 200 discrete tasks as part of the lawsuit processes. These tasks include things such as finding the right court, correctly interpreting the law, collecting and compiling evidence, filing motions, negotiating settlements, and so on.
Many of these tasks can only be done properly by someone with a thorough knowledge and understanding of the law and the court system. Harvard Law School’s Access to Justice Lab has also monitored how complex the justice system can be. Even the most routine court processes require several steps, many of which vary depending on the state, the presiding judge and the particulars of the case.
Having a litigation attorney can make this process a lot of easier for you, in addition to ensuring that your case does not get thrown out because you missed a single step you were not even aware of.
Litigation attorneys are experienced in handling civil disputes. This is their profession. Therefore, a litigator won’t get overly emotional if something they did not want to hear is said.
They can handle negotiations and mediations objectively without taking things personally. On the other hand, if you are representing yourself and something upsetting is said to you, there is a likelihood that you might take it personally and do something regrettable.
Having a litigation attorney maintains level headedness during the whole process. In addition, since the litigation attorney is conversant with the court processes, he is more likely to recognize instances of biasness or unfair treatment by a judge.
Sometimes, the key piece of evidence being used against you might not have even been obtained properly.
Unless you are conversant with court procedures, you wouldn’t know. Only an experienced person can recognize such malpractices and file motions to deal with such situations.
Proper Handling Of Your Case
Finally, working with a litigation attorney will ensure that your case is handled properly. Litigators have been in similar situations a number of times and know how to handle any issues pertaining to the case, something you might not know how to do if you are representing yourself.
For instance, if you are filing a personal injury claim, a litigator will have better knowledge of the key elements for a successful claim, the right amount to ask for, how to deal with insurance companies, and so on.
In addition, litigators have a wide network of experts and professionals who can help with the discovery process or with challenging testimony or evidence provided by the other party.
THINGS TO KEEP IN MIND WHEN HIRING A LITIGATION ATTORNEY
Once you have decided to hire the services of a litigation attorney, there are some considerations you should keep in mind to make sure you get the best out of the litigator. These include:
Experience: Different litigators specialize in different areas of the law, so you want to be sure that the litigator you choose to work with is experienced in similar cases. For instance, it would not be wise to get a real estate litigator to help you in an employment lawsuit. Ask for a track record of cases the litigator has had in the last one year and find out how many went to trial. Were the cases tried by a judge or a jury? You want a litigation attorney who is comfortable in all these situations.
Do your research: You don’t have to hire the first litigator you come across. Instead, talk with two or three of them and find the one that is best suited to handle your case. Find out about their experience, whether they think the case will go to trial or settlement, whether they will personally handle the case, their fees, and so on.
Know the details of the deal: Don’t sign any agreement with the lawyer before you understand all the details of the agreement. What information will the litigator need from you? How often will you receive updates about the case? What are the total costs? What’s outcome are you aiming for? If anything is not clear, seek clarification before signing the agreement.
Costs: Finally, review the costs associated with hiring the services of the litigation attorney. Ask for the lawyer to provide you with their fees in writing. Make sure that you understand all the charges before you hire the litigator. In addition, make sure you are aware of all the payment terms and arrangements. Will you pay an hourly rate? A flat fee? A contingency fee? You don’t want any surprises after the litigator has represented you in court.
It is clear that the legal process can be quite complex for someone who is self-representing, thereby making it necessary to have a litigation attorney help you with the process. L
itigation attorneys will help you with various aspects of a lawsuit, including initial case assessment and investigation, document preparation, drafting pleadings, discovery, pre-trial tasks, representation in trial, settlement and appeal.
Working with a litigation attorney has a number of benefits, including giving your peace of mind, helping you save costs, minimizing your risk, avoiding incriminating yourself, navigating the court process easily, better experience and better handling of the case.