Litigation Fundamentals

Litigation is the formal process of resolving disputes through the court system. Unlike negotiation or mediation, litigation involves structured procedures, formal pleadings, discovery of evidence, motion practice, and ultimately judicial decision-making. Understanding litigation requires grasping both universal principles that apply across jurisdictions and the significant procedural differences between federal and state courts, as well as between civil and criminal proceedings. Before providing litigation-related assistance, establish: (1) whether the matter is civil or criminal, (2) whether it's in federal or state court, and (3) what stage of the litigation process is involved.

Core Concepts

Litigation phases follow a predictable sequence from initiation through resolution. The process begins with pleading—the complaint (plaintiff's initial filing) and answer (defendant's response). This establishes the parties, claims, and defenses. Next comes discovery—the exchange of information and evidence between parties. Discovery is followed by motion practice—requests for court rulings on procedural or substantive issues. If the case doesn't settle, it proceeds to trial—presentation of evidence and arguments to a judge or jury. After trial comes post-trial motions and potentially appeals—review of trial court decisions by higher courts. Most cases resolve before trial through settlement, dismissal, or summary judgment.

Jurisdiction determines which court can hear a case. Subject matter jurisdiction asks whether the court has authority over the type of dispute (federal courts handle federal questions and diversity cases; state courts handle state law matters). Personal jurisdiction asks whether the court has authority over the parties (typically requires the defendant to have sufficient connection to the forum state). Venue determines which specific court location is appropriate (often multiple courts could have jurisdiction, but venue rules narrow the choice). Jurisdiction and venue are threshold issues—if a court lacks either, it cannot proceed.

Standing requires that the plaintiff have a concrete, particularized injury that the court can redress. Abstract grievances or generalized complaints don't create standing. The injury must be actual or imminent, not hypothetical. Standing ensures courts decide real disputes rather than advisory opinions.

Statute of limitations sets deadlines for filing claims. Once the limitation period expires, claims are time-barred regardless of merit. Limitation periods vary by claim type and jurisdiction—contract claims might have 3-6 year limits, personal injury 1-3 years, fraud often longer. The clock typically starts when the injury occurs or is discovered (depending on jurisdiction and claim type). Missing a statute of limitations deadline is usually fatal to a claim.

Burden of proof determines who must prove what. In civil cases, the standard is typically preponderance of the evidence (more likely than not, or 51%). In criminal cases, it's beyond a reasonable doubt (much higher standard). Some civil claims require clear and convincing evidence (intermediate standard). The burden of proof matters enormously—the party with the burden loses if the evidence is evenly balanced.

Litigation Phases

Pleading phase establishes the framework. The complaint initiates the lawsuit, stating facts, legal claims, and requested relief. The answer responds to each allegation (admitting, denying, or claiming insufficient knowledge) and may assert affirmative defenses or counterclaims. Amendments allow parties to modify pleadings, often with court permission after initial filing. Pleadings define the scope of the case—claims not raised may be waived.

Discovery phase is where most litigation time and cost occurs. Parties exchange information through depositions (sworn testimony), interrogatories (written questions), requests for production (documents and things), requests for admission (facts to admit or deny), and expert discovery (expert reports and depositions). Discovery rules vary significantly between federal and state courts—federal discovery is generally more limited and structured. Discovery deadlines are critical—missing them can result in evidence being excluded.

Motion practice involves requests for court rulings. Motions to dismiss challenge legal sufficiency of claims (Rule 12(b)(6) in federal court). Summary judgment motions seek judgment without trial when no material facts are disputed. Discovery motions resolve disputes over information exchange. Motions in limine seek to exclude evidence before trial. Motion practice requires understanding procedural rules, standards of review, and local court practices.

Trial phase presents evidence to fact-finders (judge or jury). Jury selection (voir dire) screens potential jurors. Opening statements preview each side's case. Case-in-chief presents evidence through witnesses and exhibits. Cross-examination challenges opposing evidence. Closing arguments summarize and persuade. Jury instructions explain legal standards. Verdict renders the decision. Trial procedures are highly formalized and vary by court type.

Post-trial phase includes judgment (court's formal decision), post-trial motions (requests to alter judgment or grant new trial), and potentially appeals (review by higher courts). Appeals have strict deadlines (typically 30 days from judgment) and limited scope (usually only legal errors, not factual disputes).

Terminology

Plaintiff is the party bringing the lawsuit (the one claiming injury). Defendant is the party being sued (the one defending against claims). In appeals, the appellant seeks reversal; the appellee defends the lower court's decision.

Cause of action is a legal theory entitling the plaintiff to relief. Common causes include breach of contract, negligence, fraud, breach of fiduciary duty, and statutory violations. Each cause has specific elements that must be proven.

Damages are monetary compensation. Compensatory damages cover actual losses (medical expenses, lost wages, property damage). Punitive damages punish egregious conduct (not available in all cases or jurisdictions). Nominal damages recognize a violation without significant loss. Liquidated damages are contractually specified amounts.

Settlement is agreement to resolve the dispute without trial. Settlements can occur at any stage—before filing, during discovery, on the courthouse steps, or even during trial. Most cases settle. Settlement terms are typically confidential and may include non-monetary provisions (apologies, policy changes, future business relationships).

Mediation is facilitated negotiation with a neutral third party. Arbitration is private dispute resolution with a decision-maker (arbitrator) whose ruling may be binding. Many contracts require arbitration, which generally limits court access and appeals.

Class action allows one or more plaintiffs to represent a group with similar claims. Class actions require certification showing common questions predominate and class representation is adequate. Class actions enable resolution of many small claims that wouldn't be economically viable individually.

Common Structures and Frameworks

Civil versus criminal litigation are fundamentally different. Civil litigation resolves disputes between private parties seeking money or other relief. Criminal litigation involves the government prosecuting individuals for violations of criminal law, seeking punishment (fines, imprisonment). Civil cases use preponderance standard; criminal cases require beyond reasonable doubt. Civil discovery is broad; criminal discovery is more limited. Civil cases can settle; criminal cases may involve plea bargains but are ultimately controlled by prosecutors.

Federal versus state courts have different procedures, rules, and standards. Federal courts follow the Federal Rules of Civil Procedure (FRCP) uniformly nationwide. State courts follow their own rules, which vary significantly. Federal courts have limited jurisdiction (federal questions, diversity cases with sufficient amount in controversy). State courts have broad jurisdiction over state law matters. Federal discovery is more structured and limited; state discovery is often broader. Federal pleading standards require plausibility (Twombly/Iqbal); many states still use notice pleading. Federal courts are often seen as more predictable and sophisticated for complex commercial disputes.

Trial courts versus appellate courts serve different functions. Trial courts (district courts in federal system, superior/circuit courts in states) conduct trials, hear evidence, and make initial decisions. Appellate courts review trial court decisions for legal errors, typically without reweighing evidence or hearing new testimony. Most jurisdictions have intermediate appellate courts and a highest court (Supreme Court). Appeals are limited to issues raised below and preserved in the record.

Bench trial versus jury trial differ in fact-finder. Bench trials have judges decide both law and facts. Jury trials have juries decide facts while judges decide law. The right to jury trial exists for most civil cases in federal court and many state courts, but can be waived. Jury trials are generally longer and more expensive but may be preferred for certain types of cases (emotional appeals, local bias concerns).

Key Numbers

Statute of limitations vary by claim type: contract claims typically 3-6 years, personal injury 1-3 years, fraud often 3-6 years (sometimes with discovery rule extending time), professional malpractice 1-3 years. These are general ranges—specific jurisdictions and claim types have specific deadlines.

Discovery deadlines in federal court typically require initial disclosures within 14 days of discovery conference, expert reports 90 days before trial, completion of discovery before dispositive motion deadline (often 120-180 days before trial). State court deadlines vary significantly.

Motion response times are typically 14-21 days for most motions in federal court, though local rules vary. Emergency motions may have shorter deadlines. State court response times vary.

Appeal deadlines are typically 30 days from entry of final judgment in federal court, though this varies by jurisdiction and can be extended with proper motion. Missing appeal deadlines is usually fatal.

Typical case durations vary enormously. Simple cases might resolve in months; complex commercial litigation often takes 2-4 years from filing to trial. Most cases settle before trial, often during or after discovery when parties have better information about case strength.

Settlement rates are high—estimates suggest 90-95% of civil cases settle before trial. Settlement timing varies: some cases settle early (before discovery), many settle during discovery (as information emerges), some settle on courthouse steps or during trial.

Common Misconceptions

"Filing a lawsuit means going to trial" — Most cases never reach trial. The vast majority settle, are dismissed, or are resolved through summary judgment. Trial is the exception, not the rule.

"Discovery means getting everything" — Discovery has limits. Privileged information (attorney-client, work product) is protected. Relevance requirements limit scope. Cost and burden considerations can restrict discovery. Courts can limit discovery that's disproportionate to case needs.

"Motions to dismiss are easy to win" — Motions to dismiss have high standards. Courts accept plaintiff's factual allegations as true and ask only whether they state a legal claim. Many motions to dismiss fail. Summary judgment motions (after discovery) have better success rates when facts are undisputed.

"Appeals redo the trial" — Appeals don't retry cases. Appellate courts review legal errors, not factual disputes. They defer to trial court factual findings unless clearly erroneous. New evidence is rarely considered on appeal.

"Settlement means losing" — Settlement is often the optimal outcome. It provides certainty, avoids trial risk, saves costs, and allows creative solutions (non-monetary terms) that courts can't order. Many sophisticated parties prefer settlement to trial.

"Litigation is fast" — Litigation is slow. Even simple cases take months; complex cases take years. Discovery, motion practice, and court scheduling create delays. Parties seeking quick resolution should consider alternative dispute resolution.

"You can sue anyone for anything" — Jurisdiction, standing, and statute of limitations create barriers. Courts dismiss cases that lack proper foundation. Frivolous lawsuits can result in sanctions.

Settlement Dynamics

Settlement occurs when both parties prefer the certainty of agreement to the risk and cost of continued litigation. Settlement timing is strategic—early settlement avoids discovery costs but may occur with incomplete information. Late settlement (after discovery) occurs with better information but after significant expense.

Settlement drivers include case strength assessment (each party's view of likelihood of success), cost-benefit analysis (litigation costs versus potential recovery), risk tolerance (uncertainty aversion), timing pressures (business needs, personal circumstances), and relationship considerations (ongoing business relationships, reputational concerns).

Settlement structures can be simple (lump sum payment) or complex (installment payments, structured settlements, non-monetary terms, confidentiality provisions, future business arrangements). Creative settlement terms can address issues courts couldn't order.

Mediation facilitates settlement through neutral facilitation. Mediators don't decide cases but help parties explore options, reality-test positions, and find common ground. Mediation is often court-ordered or contractually required. Successful mediation requires preparation, realistic expectations, and authority to settle.

Confidentiality is common in settlements. Parties often agree not to disclose settlement terms, sometimes not even that settlement occurred. Confidentiality protects reputations, prevents copycat claims, and allows parties to move on. Some jurisdictions limit confidentiality in certain contexts (public policy concerns, government settlements).

Jurisdiction Matters

Litigation procedures vary dramatically between federal and state courts, and among different states. Federal courts follow uniform FRCP nationwide, but local rules add variations. State courts have their own rules that differ significantly—California procedures differ from New York, which differ from Texas, which differ from Delaware.

Key differences include discovery scope (federal more limited, state often broader), pleading standards (federal requires plausibility, many states use notice pleading), motion practice (different standards and procedures), and trial procedures (jury selection, evidence rules, presentation styles).

When jurisdiction matters most: Discovery disputes (different rules on scope and objections), motion practice (different standards for dismissal and summary judgment), trial procedures (different evidence rules and presentation requirements), and appeals (different standards of review and procedures).

For federal court procedures, see Federal Litigation Primer. For state court procedures, see State Court Litigation Primer.

Cross-References

Many litigation disputes involve contracts—see Contracts Primer for contract formation, interpretation, and enforcement principles that often underlie litigation.

Employment-related litigation is common—see Employment Law Primer (when available) for employment law concepts that frequently lead to litigation.

Intellectual property litigation has specialized procedures—see IP Primer (when available) for IP concepts that drive specialized litigation.