There are varying definitions of the term, “litigation,” but the definition we think most practically provides substance comes from Cornell Law School’s website, law.cornell.edu which states:
Litigation is The process of resolving disputes by filing or answering a complaint through the public court system. The nature of this complaint (including the probable outcome for each side) becomes the basis for any settlement negotiations.
in all courts and virtually all tribunals, both federal, state, and municipal levels, the conduct of litigation is governed by set of rules. In the federal system, there are the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure, and the Federal Rules of Evidence, as well as some statutes that operate as rules such as the Title 28 series called the Judicial Procedure Act. In many cases, the official rules are supplemented by the local rules of each district or division and even by each judge or by standing orders of courts.
Litigation takes generally understood stages, but the overall strategic and tactical contours will be different in each case.
- Plaintiff (the party that brings an action) commences an action by filing a complaint with the clerk of the court. In criminal litigation, it is the state or the government that brings the action by filing an indictment, complaint, information or other charging instrument.
- The court’s jurisdiction over the defendant lodged when the defendant is served with process (summons and complaint, in civil action; the charging instrument or arrest in criminal case).
- Defendant files motions attacking the claims or the effectiveness of process. Some motions are waived if not filed before answering so it is critical to review theses matters by a competent and knowledgeable lawyer.
- Defendant files an answer or other pleadings including possible counterclaims or third-party claims.
- The parties meet and confer with one another or with the court; identify issues, explore settlement, and prepare a plan for discovery and disclosure.
- The courts generally conduct one or more pretrial conferences to address scheduling and case management objectives; to address issues; and to push the case along towards finality.
- Parties serve discovery demands upon one another; and respond accordingly to one another’s written demands with written responses and documents and things. In civil litigation, it is the goal of pretrial discovery to enable all parties to know all facts and issues so that, going into the trial on the merits, the element of surprise is generally non-existent (unless the opponent has not done its home work).
- The parties may file any additional motions, such as dispositive motions, summary judgment motion, and other pretrial motions.
- The court conducts a final pre-trial conference to address residual issues, to set schedules, to discuss other trial readiness issues.
- Trial is conducted. If jury trial, the jury is selected and empaneled before the trial begins. If non-jury, or bench, the court proceeds as the sole decision maker.
- Judgment is rendered; then filed with the clerk’s office.
- The losing side requests judgment be stayed pending appeal. Or does not request such relief. If not stayed the judgment will be subject to immediate enforcement, levy, and supplementary proceedings in aid of executing upon the judgment.
- Post-trial proceedings are possible. The winning party may seek costs and/or fees. The losing party may seek to set aside the judgment as unjustified by the evidence.
- Notice of appeal is filed with the next higher court. In the federal system, this is normally the court of appeals, but from a bankruptcy court the appeal first goes to the district court and from an agency ruling it goes directly to the court of appeals.
- Appellate “record” or appendix, along with the briefs, are created and filed with the appellate court clerk’s office.
- Appellate court judgment is rendered. The decision either affirms, reverses, or modifies the lower court’s judgment and appropriate follow up is directed. Any stay pending review will be resolved at this stage. If the trial judgment is upheld any supplementary proceedings and enforcement of judgment will continue, if previously stayed
What is “complex litigation”?
The problem is that no one really knows — or, more accurately perhaps, various definitions don’t agree. Complex civil litigation has an ‘I-know-it-when-I-see-it’ quality. Nearly everyone agrees that matters like the massive asbestos litigation, the AT&T antitrust suit, or the remedial phase of a school desegregation case are complex. But trying to find a common threat that both describes these cases and distinguishes them from the run-of-the-mill car crash is difficult.
Jay Tidmarsh & Roger H. Transgrud, COMPLEX LITIGATION 1 (2002).
Complex litigation generally involves more than a single issue in a single plaintiff versus single defendant case. It can involve a long history of complex, interwoven facts or legal issues. The term is generally used to describe a legal proceeding with multiple issues or parties which render it not a simple A versus B case involving a rear end accident.
We handle complex litigation in business contexts (contracts, fiduciary duty, tortious interference, restrictive covenants, professional liability and malpractice) and in intellectual property matters (involving trademarks, trade dress, copyrights, patent litigation, etc) and in personal disputes (such as a will contest involving several conflicting wills) as well as in torts (wrongful death, sexual harassment, age discrimination, civil rights violations, other status discrimination, serious injuries) and intentional conduct (assault, defamation, slander, libel, interference).
We are also happy to assist you in your ordinary litigation matter which may be as simple as a breach of contract where only the amount of damages is disputed or some other discrete issue.
Whatever your litigation needs, Kimm is here to provide competent service to you using state-of-the art, computer research facilities to keep abreast of changing laws to provide clients with effective and cost-effective legal service.
Our Litigation Practices (including trials and appeals)
- Administrative Proceedings
- Admiralty Claims
- Arbitrations & Mediations
- Bankruptcy Litigation
- Business Disputes
- Class Actions
- Consumer Class Actions
- Commercial Paper
- Commercial Disputes
- Criminal Defense and Regulatory Compliance
- Declaratory Judgment Cases
- Electronic Discovery Support & Litigation
- Employment, Labor Law and Wage and Hour Cases
- Estate and Wills Litigation
- Exporting and Importing
- False Claims Act (FCA) (Qui Tam Actions)
- Fiduciary Duty
- Franchising and Licensing Law
- Government Investigations and White Collar Criminal Defense
- Grand Jury Investigations
- Health Care Fraud
- Hospitality Liability
- Imports and Exports
- Insurance Coverage and Bad Faith Denial Cases
- Insurance Fraud
- Intellectual Property and Proprietary Issues
- International Transactions & Disputes
- Investment Disputes
- IRS Settlements
- Jury Trials and Non-Jury Trials or Bench Trials
- Labor, Employment Law and Wage and Hour Cases
- Land Use, Variance & Zoning
- Licenses and Professions
- other areas
- Motion Practice
- Patent Advisory
- Major Personal Injury Cases
- Products Liability
- Qui Tam Actions
- Real Estate
- Sales of Goods
- Sexual Harassment
- Shareholder Rights
- Tax Court Litigation
- U.C.C. (Uniform Commercial Code)
- Wage and Hour and Overtime
- Whistle-blower Cases
- Will Contest and Estate Litigation
- Wrongful Death
- Co-Counsel Practice
- Local Counsel for Out-of-State Lawyers