According to some estimates, over 40 million lawsuits get filed in the US each year. The majority are civil filings, which are for legal disputes between two or more parties. The rest are for criminal litigations, which are cases involving misdemeanors and felonies.
Interestingly, the US is home to only over 1.3 million attorneys. Some of them are litigators, others are trial lawyers, and some are both.
If you’re about to sue another person or entity, you may be wondering if you need to hire a litigator. What are litigators anyway, and who do they represent? What do they do on behalf of their clients?
We’ll answer all these questions in this comprehensive guide, so be sure to read on.
What Is Litigation?
Litigation is the process of taking legal action against another entity. It can be another person (or people), a company, an organization, or even the government. The litigation process handles legal disputes via the court system.
So, to litigate means to pursue a legal contest by judicial process. A perfect example is filing a personal injury lawsuit, such as for product liability. US federal courts alone saw over 12,000 filings for such cases in December 2020.
What Is a Litigator Then?
A litigator is an attorney specializing in litigation. This is why many refer to litigators as litigation attorneys.
Litigators usually oversee the entire litigation process from start to finish. If a lawsuit concludes before it goes to trial, then a litigator may be the only attorney needed.
What Exactly Does a Litigator Do?
A litigator handles the bulk of pre-trial work, most of which are activities outside the court. These include investigations, filing the lawsuit itself, and carrying out legal research. Litigators file and argue motions on behalf of the litigant they represent.
Litigants, by the way, can either be a plaintiff or defendant. A plaintiff is one who files a lawsuit against another person or entity. A defendant, in turn, is the party sued by the plaintiff.
On that note, let’s take a closer look at what a litigator can do for you. Knowing just how expansive their scope of work is can help you better understand why you should hire one.
Conducts Thorough Investigations
The first role of litigators is to serve as an investigator. They gather details, such as evidence, relevant to their client’s case.
Litigators who represent plaintiffs need enough data to support their client’s allegations. By contrast, defense litigators need to investigate to disprove the plaintiff’s claims.
During an investigation, litigators may work with other professionals, such as private investigators. They may work with medical professionals, too, such as in the case of personal injury lawsuits.
Either way, litigation attorneys must identify credible witnesses and take their accounts. All witnesses must be credible; otherwise, their testimony won’t matter in court.
Files a Pleading on Behalf of the Litigant
Once there’s enough data on the case, a litigation attorney then files a pleading with the court. Pleadings are formal documents stating a litigant’s basic position in the litigation process.
In the case of a plaintiff, the pleading takes the form of a “complaint,” also called a petition or bill. This documents the plaintiff’s reasons for pursuing legal action against the defendant. It states the plaintiff’s version of facts and the damages they incurred.
If a litigator’s client is the defendant, the litigation attorney must file an “answer.” This is the defendant’s account of what happened and why the plaintiff may be wrong to sue them. It may also include an excuse or other facts not included in the complaint.
Makes Appropriate Motions
Motions are requests for the court or the judge to hand down a legal ruling. This can be a motion to discover, wherein one side of the dispute wants to get information from the other. It can also be a motion to dismiss, often filed by defendants who claim there’s not enough evidence for the suit.
Engages in Discovery
The discovery phase of litigation involves the exchange of information between the parties. At this point, the involved parties share details about witnesses and evidence. In doing so, both parties can determine which pieces of evidence they can present in court.
Discovery can also help prevent one party from committing “trial by ambush.” This is the act of withholding evidence or information and only presenting it at trial. Litigators must not allow this, as they won’t have time to acquire answering evidence.
Attends Pre-Trial Conferences
During a pre-trial conference, the judge and the litigators often review case evidence. They also pinpoint issues and clarify them so that they won’t arise during the trial itself.
Many judges also call for pre-trial conferences to encourage and support case settlements. If both parties agree to settle, the litigation process ends without going to trial.
If no settlement occurs, the court may schedule an issue conference at a later time. Litigation lawyers usually attend this type of pre-trial conference without their clients. The two parties then go over and try to agree on certain undisputed facts of the case.
If none of the pre-trial conferences result in a settlement, the judge schedules a trial date.
Continues to Trial
If the case reaches trial, a litigator may hand it off to a trial attorney. This may occur if the litigator doesn’t work as a trial attorney. In this case, the litigator will still represent you by doing work outside the court.
As mentioned above, though, some litigators are also trial attorneys. In this case, your “original” attorney will continue to handle your litigation. They’ll keep representing you in and out of court.
Hire a Litigator Who’s Also an Experienced Trial Attorney
A common belief is that 95% of cases get settled before they reach the trial phase. Whether this is accurate or not, it’s best to hire a litigator who’s also an experienced trial attorney. This way, you’d only have one lawyer to work with throughout the entire litigation process.
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