Contrary to popular perception, the life of most litigation lawyers does not revolve around dramatic courtroom confrontations. Instead, most of the litigating process is a careful dance in which each side seeks to uncover weaknesses in the other side’s position and prepare itself for negotiations and trial.
While the preferred goal always is to resolve the dispute by means of a settlement, in practice this often requires a period of exploring the facts and testing the strength of each other’s legal case. If the other side is unwilling to settle on terms the client will accept, the only recourse may be to proceed to trial.
Being a good litigation lawyer requires strong communication and negotiation skills. Most important, however, is the ability to present a convincing legal argument in favor of the client’s position.
While a litigation lawyer’s duties differ depending on whether he or she represents the plaintiff or the defendant, the process is similar for both.
A litigation lawyer’s role can be divided into seven parts:
When a client walks through the door, a lawyer starts by listening carefully to gain an understanding of the client’s situation. By virtue of training and experience, a lawyer sometimes will know quickly whether the client’s legal position is sound. In more complex situations, the lawyer will need to conduct additional factual investigation and legal research in order to be able to properly advise the client as to the best course of action.
The investigative stage almost always will involve careful review of the client’s documents, such as any relevant contracts. It occasionally will be advisable to consult an expert in the relevant field; for instance, if the case is a construction dispute, the lawyer may wish to speak with a civil engineer, who may later become an expert witness in the case.
In addition to factual investigation, a litigation lawyer frequently will need to perform legal research and analysis at the investigative stage, because a realistic assessment of the client’s legal position is essential in order to properly advise the client about what course of action is most likely to achieve the client’s objective.
In many respects, the early stages of litigation are the most important ones because they define and mold any ensuing litigation. The greater the amount of information a lawyer has at the outset, the better the lawyer can formulate a strategy to most effectively protect the client’s interests.
Scientists have microscopes and doctors have stethoscopes, but a lawyer’s primary tools are a pen and paper—or to be more accurate, a keyboard and word-processing software.
One of a litigation lawyer’s early tasks is to prepare the initial ‘pleadings’ in the lawsuit: that is, the written complaint that initiates the suit (if the client is the plaintiff) and the defendant’s written answer to the complaint (if the client is the defendant). Before this can be done, as noted earlier, the lawyer must conduct an adequate investigation into the facts as well as sufficient legal research to enable the lawyer to develop an overall strategy for the litigation. Litigation without a strategy is like a ship without a rudder.
Early pleadings are crucial because they often define and limit the types of arguments the lawyer can present to the judge later in the case. For instance, if a plaintiff’s written complaint omits a particular legal claim, the plaintiff’s lawyer might not be able to raise that claim later in the proceedings. Similarly, if a defendant’s answer fails to raise a particular legal defense, the defense lawyer might be barred from ever raising that defense. Because these initial court filings can limit the scope of the parties’ later contentions, careful legal research is vital before submitting the pleadings.
There is a certain amount of art to drafting pleadings, especially because both sides may be in the dark about certain facts; that is, the defendant may possess information that the plaintiff does not have, and visa versa. Skill is required to draft a pleading that is specific enough to satisfy the court while also leaving flexibility to accommodate the twists and turns that the litigation may take.
Although a party may be allowed to ‘amend’ a pleading after it is filed, the court does not always grant permission for this, so litigation lawyers put a great deal of thought and strategic consideration into the process of drafting pleadings, such as a written complaint or a written answer to a complaint.
During a lawsuit’s discovery stage, each party is required to turn over relevant documents and answer questions posed by other parties. The basic purpose of this mandated sharing of information is to enable each side to develop a fuller understanding of the underlying facts.
Drafting discovery requests requires a significant amount of skill, especially because the lawyer knows that an opposing party in a lawsuit will be reluctant to disclose information damaging to its chances of prevailing. Thus the lawyer needs to pose discovery requests that do not provide wiggle room.
If a party refuses to turn over documents or answer particular questions, the judge can sanction the party, even up to the point of declaring that the party has forfeited the lawsuit.
Lawyerly skill is also used in responding to discovery requests. No lawyer wants to harm a client’s chances of winning the case, so lawyers draft answers that provide the minimum that will satisfy the client’s legal duty to share information.
If a party’s answers to discovery requests are too vague or are otherwise deficient, the opposing party can ask the judge to order more complete responses, with severe sanctions to be imposed for noncompliance. Lawyers for the parties in a lawsuit often argue vigorously about what documents need to be turned over and what questions need to be answered.
Certain types of information are shielded from disclosure, such as the content of conversations with a lawyer. A ‘lawyer-client privilege’ shields from discovery any information reflecting what the client said to his or her lawyer and visa versa. Clients can inadvertently ‘waive’ the privilege if they are not careful. Lawyers are intent on ensuring that no waiver occurs.
An essential part of litigation is mediation, where both sides meet in the presence of an independent court-appointed person, known as a mediator, and attempt to negotiate a settlement.
Mediation is compulsory before any case can go to trial, and often occurs at multiple stages of the litigation. Settling disputes reduces judges’ workload and saves taxpayers money.
Litigation lawyers are experienced negotiators. In the end, though, it is the client who decides whether to settle on the terms that the other side is willing to offer.
The lawyer will provide advice and make a recommendation about any settlement offer. But the client always controls whether to settle the case or continue to litigate.
Each side’s ultimate leverage in the mediation is the threat to continue to litigate and, ultimately, to take the case to trial if necessary.
During the pre-trial stage of the litigation, the parties narrow and clarify the issues for trial, which usually involves filing various motions and requesting a ruling from the judge. For instance, a defendant may ask the judge to dismiss one of the plaintiff’s legal claims as groundless.
Other motions may deal with evidentiary issues, such as asking the judge to bar a proposed witness from taking the witness stand on the ground that the testimony will be ‘hearsay,’ meaning unreliable second-hand information.
When a written pre-trial motion is filed, each side’s lawyer will submit a legal brief to argue that side’s position. The plaintiff’s brief will present detailed reasons why the judge should grant the motion, and the defense brief will do the same but argue that the judge should deny the motion.
Writing briefs is one of the core skills of a litigation lawyer. A brief relies on detailed legal research to present a cogent and well-reasoned argument why the client should prevail on the motion.
The law often is not black and white when it comes to applying statutes, regulations and case law to a particular set of facts, which is why the outcome of a case can be influenced by the skill with which the lawyer writes the legal brief.
In olden days, legal research involved poring over books in a law library. Nowadays the work is usually done using electronic sources. But while the physical legwork has been reduced, a significant amount of time is still needed to properly analyze a legal issue and develop a persuasive argument that will convince a judge to rule a particular way on a pre-trial motion.
If litigation were an iceberg, the trial would be its tip. Put differently, almost all the work a litigation lawyer does occurs before trial.
At trial, a barrister will take the reins of the lawsuit from the solicitor. But the solicitor will assist the barrister in preparing for and conducting the trial. As the person with the most in-depth knowledge of the case, the solicitor necessarily plays an essential role at trial.
In a jury trial, the outcome depends on how well each side’s advocates can persuade an audience of average citizens that the law favors their client’s position in the case.
While the judge’s pre-trial rulings will have clarified the issues, including some evidentiary questions, the judge still will be called upon during the trial to make additional rulings regarding admissibility of evidence and other matters, when each side’s barristers raise objections in the courtroom.
The trial court outcome does not necessarily end the lawsuit because the losing party can appeal.
The losing party may argue, for instance, that the judge erred in dismissing the lawsuit or had no legal grounds for barring the party from asserting a particular claim or defense.
An appeal will require a legal brief. This is another point at which the lawyer’s skill in crafting a compelling legal argument can turn around the case.
Here again, the expertise of a litigation lawyer can make a significant difference in the outcome for the client—as indeed it does at every stage of the litigation.
Please note: The above is not intended to be legal advice. Every circumstance is different. Always seek legal advice in relation to your individual situation.
© PCL Lawyers 2021