What is Litigation?

Litigation is always in the news, class action lawsuits, asbestos cases, drug recalls, it’s everywhere. But what does litigation really mean?

Litigation is a controversy before a court or a lawsuit. All action involves risk; most action involves the possibility of subsequent claims and litigation. The threat of litigation usually deals with the degree of injury. In most instances, lawyers are less likely to pursue litigation in cases where the injury is not serious. Most personal injury cases are taken on a contingency fee, and lawyers know that a modest injury will probably result in a modest fee that might not even equal a reasonable hourly rate. Also, if the case on liability is questionable, the defense is more likely to try a case of modest injury, and that makes it even less desirable to the lawyer. Where the injuries are severe, the odds of litigation are much greater.

There are two kinds of litigation: civil and criminal. If you break a state or federal law, you commit an offense against society. The government, on behalf of the community, begins a criminal proceeding to hold the offender responsible. A criminal litigation is therefore between the government and the accused or defendant. The government is represented by a prosecutor, typically a district attorney (for state prosecutions) or a federal prosecutor (for federal crimes). Either a private criminal attorney represents the defendant or a public defender appointed by the state.

A civil action encompasses virtually any non-criminal court proceeding. It can be a private action between two citizens, a proceeding by one person against the state, a suit by an individual against a corporation or any combination thereof. The party brings the suit, known as the plaintiff or petitioner, usually is seeking a sum of money (damages) from another party (the defendant or respondent) to compensate her for a claimed injury or loss. Sometimes the remedy sought involves not money but performance; one party wants the court to compel another either to do something he is obligated to do or to stop doing something that is injurious to one bring suit. In a civil action, the case turns not on the defendant’s guilt but on the issue of liability, a party is found either liable or not liable. The burden of proof required to establish liability in a civil suit is generally a lower threshold than the “guilty beyond a reasonable doubt” requires in a criminal trial.

In the either a criminal and civil litigation, the parties may never actually make it to court; they might come to a mutual comprise before the trial date. Parties to a civil suit might reach a financial agreement or other settlement, while the prosecution and defense in a criminal case might agree to a plea bargain, under which a prosecutor offers a reduced charge or sentence in exchange for the defendant’s plea of guilt.