Litigation refers to a case which is or may be proceeding through the traditional court process, and not through alternative dispute resolution such as Collaborative Law or Mediation.
Sometimes clients consult with us who are already in the court process or who have already been served with court papers, and require an attorney to help them navigate the court process and protect their interests. The litigation process is not always by choice, and clients are often fearful that litigation will increase the level of conflict and cost to the parties. However this is not always true and clients do have choices they can make even in litigation.
In order to make you feel more at ease, here are some frequently asked questions about litigation that will help you be more prepared when you meet with one of the family law attorneys at the Levitt Law Group. If there are other questions you have that you would like us to add to this list, which you think would be helpful to another client, please let us know!
- What does “Litigation” mean?
- Why does a case end up in litigation, and how do I know if it is the best process for me?
- How litigation is different from the out of court processes such as Collaborative Law and Mediation?
- Can I “change course” from litigation to an out of court process, if I am already in the court process?
- Is litigation expensive?
- How long will my case take if it proceeds through the court?
- Where can I get more information about Litigation?
A. Litigation refers to a case that is determined through the use of the court process, rather than any of the out of court processes. It can be due to high conflict; however, Litigation does not have to mean a “contest”; many parties are still able to resolve their cases without the need for a trial, with the assistance of attorneys who act as dispute resolution consultants or settlement counsel, and who can work cooperatively even in a litigated case to reach settlement by agreement.
Finding attorneys who are not just litigators, but who have learned additional settlement techniques through their training and experience in out of course processes such as Mediation and Collaborative Law that can be applied in a litigated case, can be helpful in finding ways to focus on resolution rather than conflict even if your case is in Litigation.
A. Not everyone can settle their differences without the intervention of the court or the input of a judge. Litigation can be a client’s first choice, or a choice of last resort; litigation can also be used in parallel with some other processes such as conciliation or mediation. There is no “one size fits all” when it comes to deciding which process best suits your needs. It is important when you consult with an attorney, to discuss not just the facts of your case, but also any concerns you have as well as your goals in terms of outcome; we work with you to help you know what your options are, so that you can make an informed decision about what route to take.
A. Unlike Collaborative Law and Mediation, the court process is open and not confidential. In litigation there is less control over the process and the outcome if you leave everything to a judge to decide. However there are many litigated cases where the attorneys and the parties are cooperative and amicable and are able to avoid trial and resolve the case by agreement; many of the litigation attorneys able to accomplish this with their clients have training in Collaborative Law and Mediation, and are not only good at litigation but also good collaborative lawyers or mediators.
A. While “changing course”, or not changing course, might have a cost, it can be important for clients to assess their ongoing needs. Litigation is always an option that remains open for parties regardless of process choice. Even if a party initially chooses an out of court process to resolve their case, if it doesn’t work they can always seek court intervention and the litigation process; so too if you are in litigation already, but want to seek out of court services at any point in time, you can usually do so. Clients sometimes choose a process option that turns out not to be a good fit; if that is the case, you should talk with your attorney about your alternatives.
A. Litigation may be more expensive than Collaborative Law or Mediation, as you have less control over your costs. As with any of our cases, we determine retainers and legal fees based upon what services you require or want. This can vary, depending on the complexity of the case, what is necessary to prepare your case, and what is necessary in terms of responding to the way the other party or the Court is processing the case. The hourly rates for attorneys and support staff may also vary based upon experience.
A. While we cannot tell you exactly how long your case will last, litigated cases often last longer than cases that get resolved out of court. The court process can be slow, with the court establishing the timing of your case rather than you. In choosing between Litigation, Collaborative Law, Mediation, or other process option, time, cost, complexity, the dynamics of the parties, and your goals and interests are important to consider and discuss with the attorney before deciding what will work best for you. We are happy to talk with you about all your options.
A. We have more information about Litigation elsewhere in our website; see also our Resource page, and our blog postings about Litigation which may also be helpful.