May 20, 2013
Litigation is big business. According to the Bureau of Justice Statistics, “The aggregate number of newly filed, reopened, and reactivated cases reported to the Court Statistics Project (CSP) from the nation’s state courts reached a record high 102.4 million incoming cases in 2006” (Bureau of Justice Statistics). Along with traditional litigation, the court system, there is also Alternative Dispute Resolution (ADR) available to aggrieved parties. Given the sheer volume of cases it is understandable that some parties may forego traditional litigation in favor of ADR. While both forms of litigation are suitable for most cases there are certainly differences between the two forms.
Traditional litigation involves the court being used to decide a case. Litigation is, according to Cheeseman, “a difficult, time-consuming, and costly process that must comply with complex procedural rules” (Cheeseman, 2010). By comparison, ADR, which includes negotiation, arbitration, mediation, and conciliation, is a shorter, less expensive process that can be just as effective.
A court case has many steps that must be undertaken before a trial even begins. The pretrial litigation process starts with pleadings, which is the filing of paperwork to start and reply to a lawsuit. The plaintiff then files a complaint and summons. This names the parties in the lawsuit, states the facts and purposes regarding what laws have been violated, and contains a “”prayer for relief” for a remedy to be awarded by the court” (Cheeseman 2010). Next the defendant must file an answer to the complaint in which they confirm or deny wrongdoing. If a defendant admits the allegations, judgment is then entered against them. If the defendant denies wrongdoing, all or in part, the case proceeds to the cross-complaint and reply stage. This is where the defendant can bring a complaint against the plaintiff. The original plaintiff must then file a reply to the new complaint. The next step in the process is intervention and consolidation. If any parties share an interest in the suit they can then intervene and become parties to the suit. If this happens the court can then consolidate all of the cases into one case. The next phase is discovery which includes depositions, interrogatories, production of documents, and physical or mental examinations. Following discovery is dismissals and pretrial judgments which include motion for judgment on the pleadings and motion for summary judgment. At this point federal court and most state courts allow the court to hold a settlement conference or pretrial hearing to facilitate a settlement. According to Cheeseman, “more than 95 percent of all cases are settled before they go to trial”. In the event that they are not, the case then goes to trial. Trials include jury selection, opening statements, the plaintiff’s case, the defendant’s case, rebuttal and rejoinder, closing arguments, just instructions,…