“Litigation” refers to the legal process in the courts by which parties seek to enforce their legal rights against other parties. To participate in that process is “to litigate.” In more common terms, “litigation” might be described simply as “lawsuits” or a “lawsuit.” When criminal laws are enforced by judicial process in the courts, it is called a criminal prosecution. When private individuals or businesses enforce rights in the courts by judicial process, it is called “civil litigation.”
A successful lawsuit requires knowledgeable and insightful efforts by an attorney through many stages, including such key steps as:
- the initial client interviews necessary to gain an understanding of a client’s situation
- the investigation, research and planning to determine proper remedies and realistic objectives in light of available evidence and resources
- the drafting of a proper complaint to lay a solid legal foundation for the case, without useless boilerplate
- the pursuit of pre-trial remedies where available
- the strategic use of discovery tools and independent factual investigations
- the necessary trial planning and preparation
- the presentation of evidence in an effective manner
- the compelling argument of the case
Litigation is an expensive process. It can be very daunting for individuals and businesses when they must commit substantial resources in either bringing a case or defending a case brought against them. Sometimes the process can take on a life of its own, in which attorneys on both sides battle each other in the pre-trial process, running up huge bills doing things that may not truly affect the outcome at trial. No client wants to take shortcuts that will jeopardize their case. But, sometimes the rational economic approach requires strategies designed to adequately prepare for trial, while limiting the costs. When the key factual and legal issues on which a litigated case may turn are first recognized, pre-trial efforts can be focused and limited, rather than employing more of a shotgun approach.
Despite the great amount of money spent in the pre-trial litigation process, almost all cases are actually settled without trial. Mediation has become the norm for the resolution of most litigated cases in California. This is due to a number of factors, including the high cost of litigation through trial and the uncertainty of trial outcomes. Mediation is a process in which a neutral person, a mediator, acts as a go-between to help the parties negotiate a settlement of a case. Mediators are typically retired judges or experienced attorneys. It is important to understand that mediation is not an adjudicative process, meaning that the mediator does not make a “decision” about the case. A mediator merely attempts to persuade each side of the benefits of a settlement and tries to convince them to commit then and there at the mediation, to a written settlement of the case.
In addition to being expensive, litigation is very stressful for the parties involved. Mediation often provides the escape valve for the pressures and expense of litigation. In such circumstances, clients must sometimes be counseled to not be too eager to make a deal just to “get it over with.” A mediator’s role is not to ensure that justice is done in a case. Success for a mediator is simply a settlement, and really, that means any settlement. An attorney must help the client understand the strengths and weaknesses of a case in order to make a reasoned decision about a favorable settlement under all of the circumstances. Some attorneys mediate and settle every case they have and guide their clients accordingly. Having an attorney who is capable and willing to go to trial is an advantage. Not all cases can be settled on acceptable terms.
Unlike mediation, arbitration is an adjudicative process. An arbitrator is a person appointed by the parties under a contractual agreement, to hear and decide the parties’ dispute. Arbitrators are typically retired judges or experienced attorneys. Once the arbitrator has made his or her decision or “arbitration award,” the award can be entered in the courts with an equal status to a judgment rendered by a judge or jury after a trial in the court.
While, in principle, an arbitrator is appointed by the mutual agreement of the parties, the prevailing reality today is that companies large and small now require that a person “agree” to arbitration as a condition of doing business with them. This means that you must give up your right to litigate in the courts and agree to be bound by the decision of an arbitrator. You must also “voluntarily” give up your constitutional right to a jury trial, as part of the binding arbitration. Businesses prefer arbitration because arbitrators are much less likely to make a large award of damages than a jury, even in cases where there is a clear breach of duty or actual misconduct.
Those experienced in traditional civil litigation recognize the serious drawbacks to arbitration. In a normal court trial, a party who disagrees with the result is entitled to appeal the outcome, as a matter of right. If the judge has made or allowed errors in the trial the decision may be overturned on appeal, especially where there has been an error of law. However, an arbitrator’s decision is final and there is no right of appeal, even where the arbitrator may have made an error of law. Normally, an arbitration award can only be overturned based on evidence of collusion or other extreme misconduct by the arbitrator. The overturning of an arbitration award is an extremely rare occurrence. This is binding arbitration.
In some cases, a party does have a true opportunity to agree to or reject a contractual arbitration clause. The standard California Association of Realtors real estate purchase contract, the most commonly used purchase contract for residential properties in California, allows a party to accept or reject an arbitration clause. This is done by initialing special boxes under the clause in a proposed contract. Most real estate agents routinely advise their clients to initial these clauses, often without understanding or explaining the significance of initialing the clause, and by merely repeating the notion that arbitration is cheaper than going to court. What so often happens is that home buyers entering into the biggest contract of their life, immediately and unknowingly give up their constitutional right to a jury trial and their right of appeal in the event of a dispute. The important thing is that parties are aware of the consequences of what they are initialing. With a proper understanding, it may be a reasonable decision to limit one’s own procedural remedies and potential recovery in the event of a dispute, in order to limit the other party’s procedural remedies and potential recovery.
The reality is that arbitration is a well-established process in which many parties will litigate their disputes and will benefit from representation by an experienced litigation attorney. J. Steven Kennedy has won a number of arbitration cases for his clients under real estate contracts, construction contracts and financial contracts.
The first thing that any client should know about an appeal is that most appeals are unsuccessful. Only a small percentage of cases on appeal have even a chance of success. It requires an attorney with an understanding of the standards of review on appeal and an interest in researching the law, to recognize those circumstances in which a successful appellate argument can be made. Of course, sometimes a decision is so clearly wrong as a matter of law or so clearly an abuse of discretion that the appellate argument is evident from the start. But, in most cases there will not be a sufficient basis for a successful appeal, despite a disappointed party’s strong personal belief that the decision is wrong. Appellate work represents the most academic side of law. It is not about courtroom presentation and not simply a re-arguing of the case at trial. An appellate lawyer must make a thorough review of the written record of the underlying trial and a studious analysis of the law, and must be able to distill these efforts into a persuasive and well-written appellate brief. When a client has obtained a successful verdict at trial, and the losing party files an appeal, these same skills and aptitudes must be applied to defend the verdict on appeal.