Litigation Before the Lawsuit
Litigation begins the moment someone decides to formally enforce or defend his or her legal rights. In most cases, this happens the moment a party hires an attorney to represent their interests. Most attorneys engage in a variety of “pre-suit” litigation activities. These can include many things, from writing a letter on a client’s behalf called a demand letter, to demand that a party compensate a victim for economic or physical injury, to filing a Notice of Eviction with a local court. Pre-suit litigation is subject matter specific and varies depending on the circumstances surrounding a particular case. However, there are several steps in litigation that occur in nearly every case.
The first step in any litigation is investigation. Litigation is meaningless without information about the harm that occurred. Attorneys, and parties, often conduct extensive independent investigations into the facts and potential outcomes of a particular case prior to filing suit. A thorough pre-suit investigation focuses the issues in the case and satisfies the wronged party and his attorney that the harm was indeed caused by the potential defendant and that the law provides for a remedy. Knowing the facts of what occurred and how and why the law provides a remedy allows the wronged party to present the case to the party who caused the harm effectively. It is also the beginning of the wronged party's preparation to present the facts and law to a court of law.
Often, pre-suit litigation includes negotiations between the parties designed to avoid the cost and inconvenience of a formal lawsuit. The demand letter sent to the party who allegedly caused the harm is designed to convince the party that the wronged party, the plaintiff, has a basis for the claim and solid evidence and documentation of the money value of the harm caused, to give the defendant the opportunity to settle prior to expending large amounts of money in the ensuing litigation. Nonetheless, the plaintiff typically requests more than they believe the defendant will be willing to pay. The defendant often responds with an amount that is less than they may actually be willing to pay. Still, it isn't uncommon for a case to settle before or soon after a lawsuit is filed, for some amount in between what each party initially proposed. Insurance companies in particular are proponents of early resolution.
Alternative Dispute Resolution
Facilitation, mediation or arbitration—all forms of what is commonly referred to as “alternative dispute resolution” or “ADR”—sometimes take place pre-suit, or even in lieu of a formal lawsuit. Again, this is largely a cost-saving move. Facilitation and mediation are largely informal processes. Each side presents their case to an independent attorney or panel of attorneys. The facilitator or mediator then attempts to negotiate a settlement between the two sides. Occasionally, a facilitator or mediator will “put a number” on a case. This means that he has put forth a dollar value on the case that he believes is a reasonable amount to settle the matter. The parties then have a fixed time to accept or reject the number. If both parties accept, the case settles.
Arbitration is a more formal type of ADR. It is usually triggered by a contractual provision, where the parties or one of the parties have signed an agreement stating they would accept arbitration in the event of a dispute. Arbitration is basically a court case that is heard by a panel of attorneys or a single attorney instead of a judge or jury. It is less formal than litigation in the court system, and while not without cost, arbitration can often be cheaper than a court case due to the less stringent rules governing the proceeding.
Arbitration can sometimes occur at later phases in litigation, such as during the trial, when parties agree that they want to expedite the case or limit costs.