A litigation attorney, commonly referred to as “litigators” or “trial lawyers,” represents plaintiffs and defendants in civil and criminal cases and manage all phases of the litigation process from investigation, pleadings and discovery, to pre-trial, trial, settlement, and appeal.
Below is an overview of the litigation process and tasks attorneys undertake during the course of a trial. These tasks vary based on the nature of the dispute, the experience level of the attorney and whether the litigation attorney is representing the plaintiff or defendant.
1) Litigation Assessment
Initial case investigations are conducted to determine, in the plaintiff’s case, if enough evidence exists to file a lawsuit or, in the defendant’s case, what evidence exists to defend a potential suit.
The process may include locating witnesses, taking witness statements, gathering documents, interviewing the client and investigating the facts leading to the dispute. A Litigation attorney will often engage in pre-litigation settlement discussions to resolve the matter before a lawsuit is filed.
2) Pe-Trial Pleadings And Motions
An experienced litigation attorney will likely draft a variety of different pleadings and/or motions on behalf of the plaintiff or defendant. Plaintiff attorneys will draft a summons and complaint to commence the lawsuit. Defense attorneys collaborate with the client to investigate the allegations of the lawsuit and formulate responses.
An attorney will also draft a variety of motions — including motions to strike, dismiss, amend or change venue and motions for judgment on the pleadings.
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3) The Discovery Process
The discovery process describes the exchange of relevant information between the parties. Attorneys employ a variety of methods to find information relevant to the lawsuit. These methods include interrogatories, depositions, requests for production, and requests for admission.
A litigation attorney will examine physical evidence, inspect the scene of the accident, as well as process and analyze information gathered during discovery. They will also draft and argue discovery-related motions including motions to compel, protective orders and summary judgment motions. The discovery process helps litigators find relevant information, identify issues and plan a case strategy.
In the weeks before a trial, attorneys from both sides will complete discovery and prepare for the actual trial. In the pre-trial stage, litigators consult with and advise clients; retain expert witnesses; attend pre-trial conferences and develop a trial strategy based on the facts and evidence.
Both sides will also conduct pre-trial depositions of experts and key witnesses; prepare demonstrations to be used as trial exhibits; and draft and argue pre-trial motions.
Many people who haven’t been through the litigation process don’t know that a majority of lawsuits filed in civil court are settled prior to trial. In cases that do proceed to an actual jury trial, litigation attorneys are busy around the clock presenting their case before the judge or preparing for the next day in court.
In the trial stage of litigation, attorneys collaborate with experts and clients to craft a trial theme, identify strengths and weaknesses in a case, develop persuasive arguments, prepare witnesses for testimony, and draft trial motions.
At trial, attorneys from both sides conduct voir dire, select a jury, and present their case in court. All litigation attorneys present opening and closing statements, examine and cross-examine witnesses, and craft a persuasive story for the fact-finder (judge or jury) through testimony and evidence. Attorneys also prepare jury instructions and conduct post-trial interviews of the jury.
As mentioned above, most cases never reach trial. Instead, cases are settled in order to eliminate the risk and expense of trial. A litigation attorney from either side may try to settle a case at any time during the the litigation process.
Settlements involve litigators engaging in negotiations with the opposing party, participating in mediations and settlement conferences with the parties and the judge, and creating settlement brochures, agreements, releases, and other settlement materials.
If a litigation attorney does not obtain a favorable outcome at trial, he or she may appeal the case. Litigators draft post-trial motions; identify and preserve issues for appeal; develop appellate strategies; gather evidence for the appellate record; research procedural issues; draft appellate documents; and present oral arguments before appellate courts.
If the case is particularly significant or complex, litigators may retain the assistance of attorneys who specialize in appellate practice.