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How to Litigate


Litigation is a broad legal concept that covers suing for damages to correct a civil wrong.  This includes compensation for injury, breach of contract and also suing for assets in a divorce.  Choosing to litigate is not always an easy decision, especially since you may be worried about prohibitive costs and the strengths of your case.  Defending against litigation is also daunting, usually because you will have to pay to mount a legal defense and unless you countersue or the state forces the loser to pay the fees of the winner.  You will then, in those situations, feel compelled to settle out of court and avoid a costly legal battle.  Whether you plan to litigate or are the litigant, legal counsel is a necessary asset.

You should never go into any major settlement proceedings without legal counsel and taking a consultation with an attorney will help immensely in understanding your legal options and organizing your case.  Most litigation ends in settlement so even if you do not intend to go to trial, it is still in your best interests to have an attorney guide you through the settlement process.  By virtue of their experience dealing with litigation, many litigation attorneys will be able to find flaws in either your or the other’s party’s claims and also help you reach a favorable settlement.

If you have some liability in the personal injury, which will happen occasionally, the attorney will be able to help you estimate your liability and how that might affect you during the settlement or in court.  This is an essential service for defendants and may be applicable to the plaintiff too if the state has a comparative negligence law.

There will be a number of specialists in litigation law and many large firms will specialize in only one specific branch of litigation.  When selecting a lawyer, ensure that you search for specialized lawyers that meet your litigation needs.

Meeting with your litigation lawyer

First of all, you will need to identify your situation and which aspect of the civil law code your lawsuit will deal with.  If you are not sure, that is acceptable, as the purpose of general litigation lawyers is to guide you and assist you in figuring out the details of the potential lawsuit.  You will need to disclose all potential liabilities, faults and evidence against the other party.

What you bring to your consultation will depend on the nature of the case.  

Personal injury cases:  You will almost certainly need medical bills that account for the damages sustained as a result of the other party’s actions.  You can only file for damages if you can prove that the other party caused damages, not that you perceive that you will sustain damages in the future or suspect that you have been injured, but cannot prove it.  Proving liability is critical in most litigation cases and the absence of proven liability will cause the litigation to fail.

Malpractice: Although medical malpractice is by far the most common form of malpractice, any professional can be sued for malpractice if they violate the standard of care expected of them by the client.  This includes financial professionals, construction companies and contractors.  There is a reasonable standard test applied to malpractice cases.  If the professional is found to have practiced “due diligence,” which is taking every precaution expected of a similar professional in the same situation, then he or she cannot be found liable for your freak injury.  If you are pursuing a malpractice case, you will need to bring evidence to the litigation lawyer that demonstrates the extent of the damage, any agreements and liability waivers between you and the professional as well as guarantees made by the professional to you.  Excessive negligence will lead to greater damages imposed by the court as a punishment for negligent behavior.

Breach of contract:  You will obviously need to bring the agreement in question as well as any subsequent agreements made with the party.  Through assessment of these documents will be critical pieces of evidence if the breach of contract litigation but go to trial.  Be able to express just how the other party has breached the contractual agreement.

Divorce:  You will need to account for all shared assets, previous arrangements with other spouses and children and also account for any contributions you may towards the child’s daycare, insurance and other expenses, if applicable.

What is comparative/contributory negligence and how might it affect my case?

Contributory negligence is the measure of liability the plaintiff has in the litigation.  The term “fault” may be used instead of negligence in some states, but the legal implications are generally the same.  There are three forms of this assessment:

Comparative negligence:
Comparative negligence reduces damages by the percentage of the plaintiff’s liability in the accident.  This means that the jury has determined that the injury could have been avoided with more care taken by the plaintiff.  However, this will be an admission that the defendant did not practice due diligence and neglected his or her standard of care to the defendant.  Some states will set a liability threshold that damages cannot be collected beyond a certain point of liability on the part of the plaintiff.

Modified comparative negligence: This is also known as the 51% rule.  Any individual that has their share of negligence in an accident exceeds 51% cannot collect damages from the other party.  If the liability is less than 51%, then the jury award will be reduced by the percentage of negligence.  For instance, if Party A, by virtue of speeding is found 30% at fault for an accident, then any jury award they receive from Part B will be reduced by 30%.  In this instance, the other driver paying damages was 60% at fault for the accident, likely because they were distracted or using a cell phone.

Pure contributory negligence:  
This is the toughest form of contributory negligence and this statute bars the collection of damages if the plaintiff is at all responsible or liable for the accident.  This differs significantly from comparative negligence that merely reduces the damages collected by a percentage of the plaintiff’s negligence in the matter.  This will make it difficult to litigate successfully.  Therefore, not only is legal representation helpful, it almost certainly essential due to the higher standards to collect damages in these cases.  Litigants benefit from this law by a wide margin as it will discredit most lawsuits against them as frivolous and ineligible to collect damages.

Joint Liability:
In addition to these contributory negligence laws, some states will have the joint liability distinction on litigation.  This means that there may be multiple defendants and each are responsibility for a proportion of the damages inflicted on the defendant.  For instance, some jurisdictions may allow those hurt by a faulty tire on the job to sue the employer, manufacturer of the tire, dealer of the vehicle and mechanic that did maintenance on the vehicle.  In some cases, one or more of the defendants may escape liability if the extent of their liability cannot be proven in court.  In states that have a threshold of liability for damages, all parties may escape responsibility if it is proven that their individual negligence does not exceed the threshold.

Other states may have strict product liability laws that protect third parties from litigation.  Only a local litigation lawyer can help you untangle the mess that can be joint liability.

How do I find an attorney to litigate for me?

Every state will have a Lawyer Referral Service that will connect individuals to litigation lawyers.  Although functioning the similarly, some states will have state-wide lawyer referral service run through a state bar association.  Other states will delegate lawyer referral services to local bar associations and guarantee the services of these organizations.  Some states will have a hybrid of the two, usually in states with a mandatory bar association.  Other states will have prominent private lawyer referral services.  For most litigation, the initial consultation will be low cost or free.

If one cannot afford a lawyer, then they should consult a legal help foundation or service, some of which is a partnership with the State Bar to provide legal services to low income residents.  Legal help will be available for those with extraordinary needs that cannot afford even a litigation attorney to handle their case.  

Remember that litigation attorneys usually work on contingency, which is little or no cost to the plaintiff.  This means that barring severe tort reform and “loser pays” laws most that are injured will be able to litigate for damages.

You may use this website to find a litigation attorney.  To do so, use the search box on top of all pages. You may also compare attorneys and ask free questions by clicking Find Attorneys on top of the page.

What specialists are needed in litigation?

Plaintiffs and defendants alike will probably find the use of expert witnesses useful for civil ligation.  This is not a low-cost proposition however.  Only use a expert witness to affirm/discredit an argument in litigation if the stakes are high and this action will potentially move the case in your favor.

How do I find a lawyer to defend me from litigation?

Although some litigation attorneys can also help you defend against litigation there are also specialized litigation defense attorneys that can assist you.   These attorneys will be aware of distinctions in the law that can protect you against a frivolous lawsuit and also ferret out weaknesses in the claims being made by the plaintiff.  In states with comparative negligence laws, these ligation defense lawyers will work to limit your liability while simultaneously working to increase the liability of the plaintiff in the matter.

What can I collect from litigation as a plaintiff?

The lawyer will help you build a case that will help secure compensatory damages for economic and non-economic losses.  The court may also impose punitive damages on the other party in instances of extreme or wanton disregard for the wellbeing of the victim.  In most personal injury cases, the other party has a duty or standard of care to the other party that has been violated.  As such, proof of this violation will be sufficient to make a case for damages against the other party.

What is tort reform?

Tort reform laws target litigation by increasing the requirements to litigate in order to cut down on the number of litigation filings.  This is due to the perception of many lawsuits being frivolous and enabled by lawyers that work on contingency.  The criticism here is that not only are both parties hurt by legal action, but that substantial resources are lost through the low-risk high reward system of civil litigation.

Tort reform laws generally include:

Reduction to the statute of limitations – especially for personal injury and product liability, the statute of limitations is reduced to as low two years.  Fraud can have a higher statute of limitations as fraud is not always readily apparent as bodily harm.  

Capping on non-economic and punitive damages - there has been significant criticism of damages awarded for pain and suffering.  The judge will be empowered by these limitations to enforce this cap.

Limiting lawyer fees – many states will impose limitation on contingency fees to prevent exploitation of clients.  This also removes some incentive to file frivolous lawsuits and also requires the litigation attorney to work harder to obtain the best possible settlement for the client

Appropriate jurisdiction – tort reform laws may put an end to “jurisdiction shopping”, rather than having the plaintiff and attorney search for a more favorable jurisdiction.  The plaintiff might do this in order to find an area where the jury will be sympathetic to the claims made in the lawsuit.  Instead, lawsuits under this law will need to be filed where the injury occurs or at the jurisdiction where the litigant is located.

Loser pays – the ultimate and extreme form of tort reform, the party that looses the lawsuit must pay the legal fees of the other party.  This stops litigation filings significantly and makes litigants unwilling to go to trial and plaintiffs less likely to file suit in the first place.  

Higher standards for expert witnesses – due to the possibility that dubious witnesses, such as doctors or other specialists may be used to validate less-than-meritable claims, some states will impose minimum requirements to serve as an expert witness during litigation.

Comparative negligence laws – some comparative negligence laws, sure as pure comparative negligence, exist to cut down on litigation filings by invalidating potential lawsuits on the grounds that the plaintiff is also liable for the injury sustained.

Tort reform laws have felt a backlash in recent years as instances of gross negligence going unpunished or those suffering injuries failing to be compensated reasonably.  Some states however will continue to pursue tort reform in the name of bringing down costs to do business or practice medicine.  Whether or not this is a proper correlation is debatable, as data exists that both condemns and vindicates tort reform.  Regardless of the state of tort reform in your state, a litigation attorney will explain these laws to you and how they will affect your ability to litigate or defend against litigation.

Personality & Values

Especially if your case goes to court, you will need a dedicated lawyer that can anticipate and dispatch problems that arise.  During the legal process, the laws of jurisdiction may change suddenly to the laws of a related jurisdiction if the court finds that they either lack the authority or legal basis to judge and enforce its ruling.  An experienced litigation lawyer will have a reasonable expectation of how the lawsuit will proceed and the ways that it may potentially become complicated due to the addition of joinders or the introduction of legal precedents from outside the jurisdiction.

Be aware of unreasonable fees, illegal activity or coercion on the part of the litigation attorney.  You will usually be able to determine if your attorney has your best interests in mind.  Bar associations maintain dispute resolution and grievance services for clients that have issues with their litigation attorney.  Failing to report negligent or unethical behavior may negatively affect both you and future clients.You will want a litigation lawyer that is honest, refrains from promising lucrative payments and will offer an objective evaluation of your case.  If the lawyer fails to be objective, this will compromise your case.  You will want a lawyer that is honest with you, rather than blindly agreeing with your claims.

Have a strategy before agreeing to meet to settle with the other party or take them to trial.  Your lawyer may wish to avoid trial and achieve the best result through negotiation or the lawyer may prefer to have the case go before a jury.

Communication is very important in civil cases.  Ensure you understand how you may contact your lawyer if you have any concerns and if it will cost you in time-based or flat fees.  Some lawyers will charge fees for email and phone contact, which can be a significant barrier in a client-attorney relationship.  Difficulty in communicating with your litigation lawyer is enough reason to consider another lawyer that will give your case adequate attention.

What are the typical rates of a litigation attorney?

Contingency fees are the accepted standard in dealing with personal injury matters in the United States.  These fees entitle the attorney to claim a percentage of the settlement, agreed upon in advance, as a lawyer’s fee.  Some states will place statutory limitations on contingency fees or the courts may take action in instances where they believe the attorney fees are excessive.  The standard against this is judged are fees charged by attorneys in similar cases, the amount of work done by the attorney in the case, and any limitations placed on the attorney by the client, such as an impending expiration of the statute of limitations.  

You may wonder why contingency fees can be as high as 40% of the damages won in litigation.  Remember that the contingency fee incorporates the time the attorney has spent working on the case and preparing for trial.  The fee also compensates for the risk of taking on injury cases, which do not always guarantee the lawyer will be paid his or her contingency fees.

Some states limit the percentage of the award from litigation that the attorney may collect.  The cap can be as low as 25% for large settlements

There will be no contingency fees for litigation defense lawyers.  Instead you will likely have to pay this lawyer by the hour or through a retainer account.

A retainer is a fee that remains in a trust account.  Every time the lawyer performs a service related to your case, he charges this account.  Leftover retainer can be returned to the client, but there is also a chance that the attorney will exhaust the retainer and require the client to refill the account.  The retainer does not include court costs, which are also paid by the client.  However, these fees, such as the fees for filing the case, are fixed.  

Take advantage of free consultations when they are available to discuss potential fees and payment arrangements with the litigation attorney.  You may be able to arrange low cost and extended payment for legal services at the discretion of the attorney or law firm.


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