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What does "Litigation" mean?

Posted by William K. Thayer | Feb 25, 2019 | 0 Comments

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To be technical, the word "litigation" is based on the intransitive verb "to litigate". According to the Merriam-Webster online dictionary, to litigate means "to carry on a legal contest by judicial process", or "to decide and settle in a court of law".

But that doesn't tell you much about the litigation process, or why litigation is necessary in some cases, but not in others. So let's delve a little deeper into the concept of "litigation", looking at it from a more understandable angle.

In the context of the personal injury and wrongful death cases that our law firm handles, litigation happens when a pre-filing settlement cannot be reached in a timely fashion with the party-at-fault or his, her, or its liability insurance company (yes, I said "its", because sometimes the wrongdoer is a government entity or corporation). Still sounds technical, doesn't it? Let's use a hypothetical case to break it down a bit.

Say you were hurt by a guy who rear-ended your car while texting on his cell phone. We will call him Mr. Bad Driver. He's insured by Alpha Insurance Company, and you make a claim with Alpha for your personal injuries that its insured's bad driving caused. But when you get done with all your medical care and try to settle with the Alpha adjuster, she offers you such a small amount that you realize his insurance company isn't taking your claim seriously. So you hire a lawyer. And the lawyer says, okay, we need to litigate your claim. Here is what that means. Let's say that lawyer is me.

First, I would prepare a summons and complaint. You would be named in it as the "plaintiff", and Mr. Bad Driver would be named as the "defendant" in it. After I had it in rough draft form, I would call you up and make sure that I had all the facts and numbers right in it, and then I would file it at the courthouse and send "true" copies out to a process server. The process server would knock on the door of Mr. Bad Driver's home and, when the door was answered, would "serve" Mr. Driver with the copy of the summons and complaint (by handing it to him or such other resident adult that answered the door). At that point, the lawsuit is "perfected" in terms of the statute of limitations. In other words, after the case has been filed in the proper court and appropriately served on "the defendant", you would no longer have to worry about "losing" your claim just because you didn't pursue it fast enough.

In terms of case stages, we will call this Stage 1. How much it costs to file your case (the filing fee) depends on which court and which state you file it in. Filing fees typically range from about $240 to $750. How much it costs for the process server depends on how quickly and easily the service of process is accomplished, but typically ranges from about $50 to $300. These expenses are what will be collectively referred to, in your discussions with me about your case, as your case "costs advanced". For more information about case expenses, click here.

Mr. Bad Driver, after having received his copy of the summons and complaint, would typically call his insurance company Alpha (or call talk to an attorney about the legal documents that he received from the process server, who would tell him to turn them over to his insurance company). His insurance company, upon learning about and receiving a copy of the summons and complaint, would immediately hire an insurance defense attorney to defend Mr. Bad Driver in the lawsuit that you brought against him. Mr. Bad Driver's attorney would file an "answer" to the allegations of your complaint, which is a document that would outline for us which assertions in your complaint the defense is admitting, versus which they are denying.

Note: Sometimes, but not frequently, an insurance company's offer on a case will significantly increase after the lawsuit has been filed and served. When this occurs, it is typically as a result of the fact that a new adjuster (a litigation adjuster) was appointed to replace the previous adjuster, simply because the case went into litigation, and the change in adjusters caused someone to take a fresh look at the claim. Litigation adjusters may have more authority, and often times, may also have more experience, than ordinary claims adjusters.

Stage 2 of the litigation would involve an exchange of written discovery. These could include "interrogatories", "requests for production", and "requests for admissions". For more information about stage 2 and stage 3 of discovery, which involves depositions, click here.

In any event, back to stage 2. I may serve some written discovery on defense counsel for Mr. Driver to have to answer, and defense counsel may serve a set on us for you to answer. In any event, if we received any, my staff and I would assist you with preparing appropriate answers and objections to the written discovery served upon us by the defense. This part of the process may require production of your medical records, related medical bills, wage loss documentation, tax returns, identification of persons with knowledge about your case, such as eyewitnesses to the car crash, family friends and coworkers of yours that can compare how you were before and after the crash, and the medical and other experts that you may rely upon to prove your case at arbitration or trial. The process of answering written discovery in litigation takes up a lot of attorney time, and it will be somewhat demanding of your time as well.

Stage 3 of the case usually involves depositions. I would be taking the deposition of Mr. Bad Driver, and the insurance defense attorney would be taking your deposition. Eyewitnesses or other persons with pertinent information could be deposed as well, especially if it is a contested liability case (the defense denies that the defendant is at fault, say, maybe, they claim Mr. Bad Driver wasn't actually texting but just had a heart attack, and that is why he rear-ended your car). In a deposition, the party or witness being deposed is sworn to tell the truth, and then asked a multitude of questions before a court reporter, who transcribes the conversation and reduces it to a transcript that can be used later in court. Sometimes the depositions are also video-recorded. The process of getting you ready for your deposition, including a pre-deposition meeting with me and sometimes a review of extensive documents, can be time-consuming and may be stressful for you. Also, this is another stage of litigation that increases your costs advanced, as court reporters typically charge a sitting fee of $50-$100 per hour, plus $3 to $4 per page for the transcript that they type up when it is ordered by your attorney.

At this point in the litigation process several other things may be occurring that don't necessarily involve your time, but could dramatically shape the outcome of your case, and the extent of your costs advanced. Your attorney may be meeting with your treating doctors or other possible expert witnesses to determine whether they should testify at the arbitration or trial of your case. Medical witnesses, accident reconstruction, bio mechanical, vocational, billing, and other experts are often used by one side or the other if not both in a car crash case. Your attorney has to evaluate what sort of expert opinions will help prove your case, and discern whether favorable opinions from qualified experts can be presented to help your odds for a better case outcome. But time spent with experts is expensive. It is not unusual for experts to charge $250 for every 15 minute consultation they have with your attorney. If the expert has to actually appear on your behalf at the arbitration or trial of your case, their bill may be $1,500 to $10,000, depending upon their fee schedule.

The other thing that can occur during Stage 3 of your litigation is motions practice. In some cases, dispositive motions can be filed after the written discovery process is done and depositions have occurred – regarding issues that may affect the outcome of your case. If so, they will be briefed by both sides and then decided upon by the court. An example of this in your case might be a motion for summary judgment asking the court to find Mr. Driver at fault as a matter of law because he rear-ended your vehicle, and his attorney did not in the earlier discovery exchanges produce any evidence excusing that behavior (it turns out there was no proof that he had any heart attack after all). Other motions can be filed and heard, for purposes of getting the court's advance ruling on the admissibility or inadmissibility of certain potential evidence.

Typically sometime before or during this stage of your litigation it will be decided whether your case will be arbitrated or tried, and if tried, whether the fact finder (the decision-maker in your case) will be a judge or a jury. And a date will be set for the commencement of the arbitration or trial of your case. For more information about arbitration, click here.

Finally, often in this stage of the litigation, the parties may undertake one or another form of "ADR" (the acronym for "alternative dispute resolution") – in fact, some courts require that ADR occur before the case can be tried or arbitrated. One form of ADR is mediation. Another option is a judicial settlement conference. Either offers a "last-ditch" opportunity to compromise and settle your case, before both sides incur what is often the largest portion of their costs and attorney fees – those charged by experts and attorneys over the final weeks before and for their respective actual appearances at the trial or arbitration of the case. Typically, the parties will split the cost of a mediation 50-50, and a simple mediation of a car crash case like the hypothetical one we have concocted for you against Mr. Bad Driver would last only a half to a full day (and run between $500 to $2,500 for your half share of that cost depending on the price of the mediator chosen by the parties). For more information about mediation, click here. Judicial settlement conferences cost much less than a mediation costs, or sometimes even nothing, but often are done by judges that can't afford to spend much time with the parties and who may have less patience or experience at seeking compromise of cases than do many of the good mediators.

Many cases don't get to Stage 4, an arbitration or trial. At an arbitration, your case gets decided by a neutral lawyer or a panel of 3 lawyers. On a car crash case, a typical arbitration doesn't last longer than one half to a full day. There may be a cost to you in the range of $200-$1,500, unless it is an arbitration occurring under your own insurance policy (an underinsured motorists benefits claim), in which case typically the cost of the arbitrators is paid by your insurance company. If your case is going to be resolved by a jury, however, most automobile collision civil cases take 2 to 4 days to present to a jury. There is a jury fee, which varies from court to court, and which must be paid by the party which makes the jury demand. It is typically somewhere around $250. Generally, the outcome of an arbitration or jury trial will end your case, for better or for worse. Occasionally, however, it becomes necessary to reduce the arbitration award or jury verdict to judgment. Beyond that, there is even the possibility of an appeal. So...

Stage 5. After an arbitration or trial, there may in some cases be the possibility for an appeal. Let's hope your case doesn't get that far. And statistics bear out that it probably wouldn't. But we'll touch on the types of appeals possible below anyway to help tie this all up.

Appeals from an arbitration award under the MAR systems of Washington Superior Courts and Oregon Circuit Courts can lead to a jury trial which is in essence a complete re-hearing and re-decision of the entire case.

An appeal from a jury verdict, in contrast to one from an MAR arbitration, is a more limited process, where the appellate court will only consider and decide whether the trial judge in presiding over the case below erred in admitting evidence for the jury's consideration, in excluding evidence, or with regard to the instructions as to the applicable law that were provided to the jury. If the appellate court reverses the judgment entered below, then the case gets returned to the trial court for a new trial before a different jury. If that happens, the litigation process from beginning to end can span over half a decade or more, at great expense to the parties. But thankfully, appeals from civil jury verdicts on car crash cases are only very infrequently filed.

So, to wrap this up, that is what "litigation" means. It isn't necessarily ideal for the faint of heart. But sometimes it's nevertheless necessary, if an insurance company isn't fairly evaluating your loss that was caused by its insured. Fun or no fun, if that is what you are dealing with, litigation may be the right thing to do with your case.

If you have any questions about the litigation process or whether your case may benefit from being filed, please feel free to give us a call at Schauermann Thayer. We'd be happy to talk with you and address any concerns you may have.

About the Author

William K. Thayer

Bill Thayer is one of the founding partners of the Schauermann Thayer Jacobs Staples & Edwards law firm. Bill is licensed in both Oregon and Washington, and has been practicing law since 1980. Bill advises and represents clients in personal injury and wrongful death claims and litigation, including automobile collision, motorcycle, bicycle, and pedestrian injury and death cases, dog bite cases, construction site injury claims, and a myriad of other types of injury and death claims. While many claims are settled through negotiation or mediation, Mr. Thayer has litigated, arbitrated and/or tried to verdict many cases for his clients. He is also frequently appointed by courts and other lawyers to serve as an arbitrator of tort claims. Bill enjoys writing as one of his varied recreational interests when he is not working.

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