What does a litigation lawyer do?
When should you hire a litigation attorney and how can they help you?
What are the roles and responsibilities of litigation lawyers?
In this article, we will cover the topic of litigation lawyer in detail.
We will look at what is litigation, what litigation lawyers do, their responsibilities, how they handle lawsuits, when to hire one and how they can offer you value.
Let’s get started!
What is litigation
Litigation is the term used to refer to the process of enforcing or defending your legal rights.
It can be before a lawsuit is filed, during the legal proceedings or after.
Another way you can think of litigation is to refer to it as “legal dispute”.
If a party is in litigation with another, they are in a legal dispute with another.
Typically, when we refer to the term litigation, most people will think of court disputes and courtroom related battles.
Litigation is not just another term for a lawsuit or courtroom related activities, it includes any legal activity required to enforce a legal right or to settle a dispute.
Litigation activities can include pre-suit notices, pre-suit negotiations, pre-suit investigations, the actual lawsuit, motion practice, discovery, pre-trial, trial, arbitration, court representations, alternative dispute mechanisms, appeals, enforcement of a judgment and so on.
The term litigation is broad and thus covers all aspects of dispute management.
What does a litigation lawyer do
A litigation lawyer, also known as a litigator, is specialized in a specific area of the law and in the litigation process.
For example, an patent infringement lawsuit will require a lawyer to be experienced in both the litigation process for prosecuting a patent infringement case but the laws applicable to patents.
A business litigation lawyer is a lawyer who understands the laws applicable to businesses along with the litigation process in court.
Trial lawyers are often associated with the glamour of what we see on television or in the movies.
The real job of a litigation attorney is not necessarily as glamorous as it may appear!
A litigation lawyer can be involved at any point in time in a litigious matter.
Where litigation lawyers bring value is through their ability to:
- Properly investigate your claim
- Accurately define the legal basis for your claim
- Draft your legal proceedings on the basis of the facts of your case and the law
- Gather the right evidence to try your case
- Respect the rules of evidence to formally enter your evidence in the record of the court
- Present your case in a credible way to a judge to get you a favourable judgment
There’s a lot of work that goes into each of these steps.
A litigator must have the experience, legal knowledge and communication skills to succeed.
Responsibilities of litigation lawyers
Litigation attorneys have the responsibility to explain to you the legal steps and processes you need to follow to enforce or defend your legal rights.
To start with, your litigation lawyer should assess whether or not you have a claim and how to go about structuring your case so you put all the chances on your side.
In most cases, a dispute will be resolved through a monetary award.
Litigation lawyers need to define what is the possible monetary award you can reasonably expect so you can determine if the filing of a lawsuit is worth pursuing.
A litigator has many responsibilities depending on the stage of your dispute.
You can hire a litigation lawyer to:
- Research and investigate the legal basis of your claim
- Provide you with a legal opinion as to your case strengths and weaknesses
- Assist you in drafting legal notices to the opposing party
- Handle pre-suit negotiations to resolve your dispute
- Draft and file your lawsuit
- Perform discovery and gather evidence for your case
- File interim or interlocutory motions in court also referred to as motion practice
- Deal with witnesses and other parties involved in a litigation such as experts
- Help you prepare for trial
- Handle your case during trial and plead your case
- Assess the judgment of the court and appeal as needed
At the end of the day, you want to work with a litigation lawyer to maneuver your case in such a way that your interests are well protected during negotiations or court procedures.
Let’s break down some of the important phases of litigation in more detail.
Pre-suit litigation is the moment when a party considers that their legal rights have been violated and demands from another party compensation.
Typically, pre-suit litigation starts from the moment you send a notice of claim or demand letter to the opposing party.
In your demand letter, you’ll outline the grounds based on which you believe the other party has breached your legal rights and you demand compensation for the damages you may have suffered.
When the opposing party receives your demand letter, your litigation lawyer can lead all the communications or pre-suit exchanges in such a way to uphold your rights while avoiding to hurt your legal position.
Pre-suit investigation and negotiation
Depending on the type of litigation you are involved in, you may need to perform a comprehensive pre-suit investigation.
For example, for an anti-trust lawsuit, a copyright infringement lawsuit or intellectual property rights infringement cases, you may need to retain the services of experts to assess your claims and provide you with an opinion on your assertions.
You may also want to formally assess the damages you have suffered to ensure you can substantiate your claims.
The pre-suit investigation helps you validate your case is worth pursuing.
Your litigation lawyer will help you take all the steps necessary in the context of the actual lawsuit.
Conducting a lawsuit means that your lawyer must draft the motion to institute legal proceedings and handle all interlocutory motions or motion practice.
A motion is a legal demand or a legal application demanding something from the court.
In addition to handling the motion practice, litigation lawyers need to perform a discovery.
Discovery is the process of gathering evidence and deposing witnesses in order to get the factual elements required to support your claim or attack the claims of the other party.
Every step you take in your lawsuit is intended to help you prepare your case for trial.
A litigation lawyer’s role is to help you get your file ready for trial, collect relevant evidence, do the proper research and present your case to the court.
Your litigation attorney will also have the accountability to guide you following the termination of the legal proceedings when the court renders a judgment.
The rendering of a judgment on merits puts an end to the lawsuit unless a party decides to appeal the judgment.
On a post-trial basis, your litigation lawyer should assist you to appeal the judgment or enforce the judgment to recover your monetary award.
When to hire a litigation attorney
Every case is different.
The precise moment when you need to hire a litigation attorney can differ from one case to the next.
As a rule of thumb, you should consult a litigation lawyer when you believe that your legal rights have been infringed.
For example, if you believe that your contracting party has breached the terms of your contract, you should consult a litigation lawyer to see if your assessment of the contractual breach is legally valid.
By consulting a litigation lawyer, you can get guidance as to what you should do, or not do, to enforce your rights or defend them.
If your dispute cannot be resolved amicably, you should hire a litigation lawyer to take the legal actions necessary to seek compensation or remedy.
You should consider the complexity of your case when looking to hire a litigation attorney.
If you are going to file an anti-trust lawsuit, you’re probably going to need to hire a litigation lawyer much sooner than if you are dealing with unpaid account receivables for a product shipped but not paid.
You should also consider hiring a litigator when you receive a notice of claim or lawsuit from another.
Depending on what is being claimed against you, your litigation lawyer will help you respond to the allegations raised against you in such a way that you do not hurt your defense.
How much do litigation attorneys cost
If you are looking to demand compensation from another party and file a lawsuit, depending on the facts of your case, a litigation lawyer may work on a contingency basis or charge a nominal legal fees combined with a payout based on the success of the case.
A contingency fee basis is when a lawyer does not charge you any fees and hopes to collect when you get a monetary award.
A contingency fee structure aligns the interest of the lawyer and the client in such a way that the lawyer must do everything necessary to succeed and get an award, if not, they will not collect any fees.
There are some types of cases in some jurisdictions where contingency-based fee structures are not authorized.
For example, in some jurisdictions, lawyers cannot take a family law case on a contingency basis.
Litigation lawyers representing a defendant or plaintiffs without a monetary claim will generally work on an hourly basis.
Depending on the complexity of your case and the experience of the lawyer, the hourly rates can vary between $100 to $1,500.
That’s right, there are litigation lawyers that can charge you up to $1,500.
Litigator vs lawyer
What is the difference between a litigator and a lawyer, is there any?
A litigator is actually a lawyer.
A lawyer is not necessarily a litigator.
A lawyer is a professional who understands the law and provides legal advice and service to clients.
A lawyer can be a generalist or specialized in any area of the law without necessarily handling disputes or court procedures.
A litigator is a lawyer who is specialized in dealing with legal disputes outside or within a courtroom.
A litigator has proficiency with the court rules of procedure, understands the rules of evidence, knows how to examine and depose witnesses, has the ability to plead a case and handle what’s needed to get a favourable court judgment for you.
Litigation lawyers are professionals experienced in dispute resolution and court procedures.
Effective litigation lawyers are specialized in an area of the law and have a good grasp of the court rules of procedure to legally invoke or defend your legal rights.
For example, a litigation lawyer in the area of employment law will have a full and complete understanding of labour laws and understand the mechanics of the employment courts.
Depending on the complexity of your case, you may want to consult with a litigation lawyer to make sure you understand the legal considerations applicable to your case and know how to conduct yourself going forward.
Managing a dispute is not easy and requires one to have the legal knowledge, interpersonal skills and experience to get the job done right.
We hope this article gave you a good understanding of what litigation lawyers do.
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