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What is Litigation?

A controversy before a court or a lawsuit is commonly referred to as litigation. If a case is not settled by agreement or negotiation between the disputing parties, it may eventually be heard and decided by a judge or jury in a court. Litigation is one way that people and companies resolve disputes.

Why Choose Litigation
How to File a Lawsuit
Filing a Complaint
When to Involve an Attorney
What to do if You're Being Sued
How to Avoid a Lawsuit
How Attorneys are Paid


Why Choose Litigation

Litigation is a costly, lengthy process that may not be the best solution to a conflict. However, if mediation and arbitration has failed, or if one party is unwilling to agree to mediate or arbitrate, litigation may be the only solution to the conflict.

How To File a Lawsuit

  • Inform the other party that the controversy exists. This is called "presenting a claim" and is optional.
  • In the claim, you (the aggrieved party) explain, in writing, to the other party why s/he is responsible for the harm suffered.
  • Some claim letters threaten a lawsuit. Other claim letters set forth the controversy, a proposed resolution, and an offer to submit the controversy to an arbitrator or mediator.
  • If you cannot resolve the issue via alternative dispute resolution, a lawsuit can be started by filing a complaint in a court of law.

Filing A Complaint

It is best to hire an attorney to file a complaint as there are rules of civil procedure, whether established by Federal, state or local law, and strict court formalities which must be followed. Even in filing the complaint, there are strict rules, such as selecting the right court, exhaustion of all potential administrative remedies, and even the type of paper used, the margins, the spacing of words on the paper, and the size of type that must be used. An attorney will assist you in adhering to the proper forms and rules.

When to Involve an Attorney

Depending on the seriousness of the matter, our advice is to get an attorney involved as early as possible, as an attorney can help you achieve the results that you want. It is particularly important in an accident case, as the other side's insurance company has far more information than you do, and may take advantage of you. We suggest that you look at the specific sections of the WylieLaw legal help site that deal with the type of accident or area of law involved in your case.

Even in commercial disputes, getting an attorney involved early can help the parties keep perspective so that a simple matter does not get blown out of proportion. A good attorney can keep you from making concessions that would hurt your case if you can not amicably settle, prevent critical evidence from getting "lost", witnesses from changing their mind, and avoid conduct that can land you in trouble, or expose you to dangers you had not considered.

What to do if Someone Files a Lawsuit Against You

If you find yourself being sued, you should first examine your insurance policies to determine if you have coverage. Many policies require immediate notice, therefore, if you try to resolve the dispute yourself, your insurance company may refuse to provide coverage if you look to them for assistance later. After consulting your insurance policy, it will probably be in your best interest to speak with an attorney to determine the optimal course of action.

How to Avoid a Lawsuit

Unfortunately, the United States is one of the most litigious societies in the history of the world. Many lawsuits are necessary to keep in check the powers of various agencies and companies, while other lawsuits help protect the rights of the individual. Yet, the first response to many conflicts in our society today is to sue. Therefore, it may be difficult to avoid a lawsuit. However, being fully aware of ADR techniques (such as mediation) is one way to avoid costly lawsuits.

How Attorneys are Paid: the Contingency Fee

In some types of cases, attorneys are willing to handle matters on a "contingency basis." In such a case:

  • You do not pay legal fees unless and until you win.
  • The lawyer receives a percentage of your recovery as his or her fee.
  • If you lose your case, there would be no legal fee at all for the lawyer.

A contingency fee arrangement is a method that allows many individuals who have been injured or seeking to recover damages, such as those resulting from an auto accident or a medical malpractice case, to obtain legal representation even if they do not have money to pay a lawyer at the outset of a case.

As a general rule, accident and personal injury litigation is frequently handled on a contingency basis, commercial disputes rarely are, and in New York State, it is illegal and unethical for an attorney to handle any criminal matter on a contingency basis.