Allison Legal — General Litigation
Litigation is not pretty, and nothing like what is shown on TV. The reality is, litigation is a process known for being difficult, slow, expensive, unfair, and full of protracted aggravation and technical details. When people are involved in civil litigation, they often gain a new dislike of lawyers and the legal system. However, knowing how to navigate a litigation process is only one of a lawyer’s skills, and the reality is that the mass majority of lawyers don’t do it.
Litigating requires a detailed knowledge of the rules of civil procedure and the rules of evidence. Both sets of rules are in place at the state and federal level, and they often don’t match. Just deciding on where to file a case can be a tediously difficult and technical process. Missteps in the process and procedure can mean the end of a case, and good litigators know how to exploit the other side’s mistakes, no matter how small.
Good facts win cases, but even good facts can’t help if the facts don’t “come in.” Getting your evidence into the case and in front of the judge or jury would seem to be a given. It’s not. The rules of evidence are very complex, and good litigators always argue to keep the other side’s good facts out of the case.
The fights over procedure and evidence consume the litigation process. Motions, briefs, and written arguments are the norm. Researching, producing, and arguing your side of a case with legal authority is an all-consuming process, and if you don’t prevail, your case can be derailed.
The reality is that the rules of procedure and evidence aren’t really rules; they are weapons. Good litigators know the rules and use them aggressively. It’s an adversarial process, and while lawyers from both sides of a case may be “friends” and treat each other with respect, the name of the game is WIN, so the gloves come off in every case.
Adding to the complexity and difficulty of the litigation process is the court system itself. The federal court system is viewed by many litigators as complex and mysterious. Federal judges are appointed for life, and they have substantial resources to help them work their cases. State judges are most often elected and often work with little resource to help manage their docket. The result is that the federal court system is generally more efficient, but it’s a more costly and rigorous place to try a case. State courts are generally less efficient and less rigorous, but often more chaotic to work in, with “justice” being doled out at high speed, many times in error.
In either court system, the rules of procedure and evidence govern the process, and the court (i.e., the judge) is focused on specific, detailed steps to get through the procedure. The resulting reality for the lawyer is that, if a document or piece of evidence can’t be produced immediately, the judge may conclude it doesn’t exist and move on. Accordingly, good litigators are known for keeping themselves organized. The good litigator’s motto is simple: get organized early, and stay organized.
In summary, a good civil litigator knows: if a civil dispute can be dealt with “fairly” outside of the courtroom, that option should be seriously considered. If it can’t, then litigation is the method we have to resolve disputes in America, and with all its flaws and difficulties, it does work.