litigation n : a legal proceeding in a court; a judicial contest to determine and enforce legal rights [syn: judicial proceeding]

English

Etymology

litigate + -tion

Pronunciation

• Rhymes with: -eɪʃǝn

Noun

1. The conduct of a lawsuit

   There is ongoing litigation in this matter.

   This law firm is known for its litigation practice.

   That attorney has been chastized for his litigation behavior.

Translations

References

In American law, a lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal or equitable remedy. One or more defendants are required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment will be given in the plaintiff's favor, and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

A lawsuit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also enable the government to be treated as if it were a private party in a civil case, as plaintiff or defendant regarding an injury, or may provide the government with a civil cause of action to enforce certain laws.

The conduct of a lawsuit is called litigation.

Rules of procedure and complications in lawsuits

Rules of criminal or civil procedure govern the conduct of a lawsuit in the common law adversarial system of dispute resolution. Procedural rules are additionally constrained/informed by separate statutory laws, case law, and constitutional provisions that define the rights of the parties to a lawsuit (see especially due process), though the rules will generally reflect this legal context on their face. The details of procedure will differ from jurisdiction to jurisdiction, and often from court to court within the same jurisdiction. The rules are very important for litigants to know, however, because they dictate the timing and progression of the lawsuit — what may be filed and when to get what result. Failure to comply with the procedural rules can result in serious limitations in conducting the trial or even dismissal of the lawsuit.

Though the majority of lawsuits are settled and never even get to trial, they can expand into a very complicated process. This is particularly true in federal systems, where a federal court may be applying state law (e.g., the Erie doctrine in the United States) or vice versa, or one state applying the law of another, and where it additionally may not be clear which level (or location) of court actually has jurisdiction over the claim or personal jurisdiction over the defendant. Domestic courts are also often called upon to apply foreign law, or to act upon foreign defendants, over whom they may not, as a practical matter, even have the ability to enforce a judgment if the defendant's assets are outside their reach.

Lawsuits become additionally complicated as more parties become involved (see joinder). Within a "single" lawsuit, there can be any number of claims and defenses (all based on numerous laws) between any number of plaintiffs or defendants, who each can bring any number of cross-claims and counterclaims against each other, and even bring additional parties into the suit on either side after it progresses. However, courts typically have some power to separate out claims and parties into separate suits if it is more efficient to do so, such as if there is not a sufficient overlap of factual issues between the various claims.

The progress of a lawsuit

The following is a generalized description of how a lawsuit may proceed in a common law jurisdiction:

Pleading

A lawsuit begins in federal courts when a complaint is filed with the district court clerk. This complaint will state that one or more plaintiffs is seeking damages or equitable relief from one or more stated defendants, and will identify the legal and factual bases for doing so. The clerk of a court signs a summons, which is then served by the plaintiff upon the defendant, together with a copy of the complaint. This service notifies the defendants that they are being sued and that they have a specific time limit to file a response. By providing a copy of the complaint, the service also notifies the defendants of the nature of the claims. Once the defendants are served with the summons and complaint, they have a time limit to file an answer identifying their defenses to the plaintiff's claims, including any challenges to the court's jurisdiction, and any counterclaims they wish to assert against the plaintiff. With the advent of the Internet it has now become possible to register any greivance online, for free at sites like SueEasyhttp://www.sueeasy.com. Drastically reducing barriers of entry and red-tape for the common man.

In many state courts, a lawsuit begins when one or more plaintiffs properly serve a summons and complaint upon the defendant(s). In these states, the plaintiffs need not file the complaint with the district court clerk to commence the lawsuit. As in federal court, the defendant(s) will have a specific time limit during which they may file their answer.

If the defendant chooses to file an answer within the time permitted, he must respond to each of the plaintiffs' allegations by admitting the allegation, denying it, or pleading a lack of sufficient information to admit or deny the allegation. At the time he files an answer, the defendant will also raise all "affirmative" defenses he may have. He may also assert any counterclaims for damages or equitable relief against the plaintiff, and in the case of "compulsory counterclaims," must do so or risk having the counterclaim barred in any subsequent proceeding. The defendant may also file a "third party complaint" in which he seeks to join another party or parties in the action if he believes those parties may be liable for some or all of the plaintiff's damages. Filing an answer "joins the cause" and moves the case into the pre-trial phase.

Instead of filing an answer within the time specified in the summons, the defendant can choose to dispute the validity of the complaint by filing one or more motions to dismiss. The motion must be filed within the time period specified in the summons for an answer. If all such motions are denied by the trial court, and the defendant loses on all appeals from such denials (if that option is available), then the defendant must file an answer.

Usually the pleadings are drafted by a lawyer, but in many courts persons can file papers and represent themselves, which is called appearing pro se. Many courts have a pro se clerk to assist people without lawyers.

Pre-trial

The early stages of the lawsuit may involve initial disclosures of evidence by each party and discovery, which is the ordered exchange of evidence and statements between the parties based on what they each expect to argue during the actual trial. Discovery is meant to eliminate surprises and clarify what the lawsuit is about, and perhaps to make a party realize they should settle or drop the claim, all before wasting court resources. At this point the parties may also engage in pretrial motion filing in order to exclude or include particular legal or factual issues before trial, by blocking the other party from presenting a particular witness or arguing a particular legal theory.

At the close of discovery, the parties may pick a jury and then have a trial by jury. Or, the case may proceed as a bench trial heard only by the judge, if the parties waive a jury trial, or if the right to a jury trial is not guaranteed for their particular claim (such as those under equity in the U.S.) or for any lawsuits within their jurisdiction.

Trial and judgment

The lawsuit may then proceed similarly to a criminal trial, with each side presenting witnesses and submitting evidence, at the close of which the judge or jury renders their decision. Generally speaking, the plaintiff has the burden of proof in making his claims, which means that it is up to him to produce enough evidence to persuade the judge or jury that his claim should succeed. The defendant may have the burden of proof on other issues, however, such as affirmative defenses.

There are numerous motions that either party can file throughout the lawsuit to terminate it "prematurely" — before submission to the judge or jury for final consideration. These motions attempt to persuade the judge, through legal argument and sometimes accompanying evidence, that because there is no reasonable way that the other party could legally win, there is no sense in continuing with the trial. Motions for summary judgment, for example, can usually be brought before, after, or during the actual presentation of the case. Motions can also be brought after the close of a trial to undo a jury verdict that is contrary to law or against the weight of the evidence, or to convince the judge that he should change his decision or grant a new trial.

Also, at any time during this process from the filing of the complaint to the final judgment, the plaintiff may withdraw his complaint and end the whole matter, or the defendant may agree to a settlement, which involves a negotiated award followed also by the plaintiff withdrawing his complaint and the settlement entered into the court record.

Appeal

After a final decision has been made, either party or both may appeal from the judgment if they are unhappy with it (and their jurisdiction grants the ability). Even the prevailing party may appeal, if, for example, they wanted an even larger award than was granted. The appellate court (which may be structured as an intermediate appellate court and a higher supreme court) will then affirm the judgment, refuse to hear it (which effectively affirms), reverse, or vacate and remand, which involves sending the lawsuit back to the lower trial court to address an unresolved issue, or possibly for a whole new trial. Some lawsuits go up and down the appeals ladder repeatedly before finally being resolved.

Enforcement

When a final judgment is entered, the plaintiff will likely be barred under res judicata from trying to bring the same or similar claim again against that defendant, or from relitigating any of the issues, even under different legal claims or theories. This prevents a new trial of the same case with a different result, or if the plaintiff won, a repeat trial that merely multiplies the judgment against the defendant.

If the judgment is for the plaintiff, then the defendant must comply under penalty of law with the judgment, which will usually be a monetary award. If the defendant fails to pay, the court has various powers to seize any of the defendant's assets located within its jurisdiction, such as:

• Liens
• Wage garnishment
• Bank account garnishment

If all assets are located elsewhere, the plaintiff must file another suit in the appropriate court to seek enforcement of the other court's previous judgment. This can be a difficult task when crossing from a court in one state or nation to another, though courts tend to grant each other respect when there is not a clear legal rule to the contrary. A defendant who has no assets in any jurisdiction is said to be "judgment-proof." The term is generally a colloquialism to describe an impecunious defendant.

Indigent judgment-proof defendants are no longer imprisoned; debtor's prisons have been outlawed by statute, constitutional amendment, or international human rights treaties in the vast majority of common law jurisdictions.

History of the term "lawsuit"

During the 18th and 19th centuries, it was common for lawyers to speak of bringing an "action" at law and a "suit" in equity. The fusion of common law and equity in the Judicature Acts of 1873 and 1875 led to the collapse of that distinction, so it became possible to speak of a "lawsuit".

In England and Wales the term "claim" is far more common; the person initiating proceedings is called the claimant.

American terminology is slightly different, in that the term "claim" refers only to a particular count (or cause of action) in a lawsuit. Americans also use "claim" to describe a demand filed with an insurer or administrative agency. If the claim is denied, then the claimant (or policyholder or applicant) files a lawsuit with the courts and becomes a plaintiff.

In medieval times, both "action" and "suit" had the approximate meaning of some kind of legal proceeding, but an action terminated when a judgment was rendered, while a suit also included the execution of the judgment.

Notes and references

See also

• Frivolous litigation
• Lawyer
• List of environmental lawsuits
• Restorative Justice
• Revenge
• Tort reform

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