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Litigation/ADR

Litigation is one way to end a dispute when the parties to the controversy are not able to reach an agreement themselves. The term “litigation” is used to describe the entire process for the resolution of a dispute by a judge or jury in our civil court system: filing a lawsuit, discovery and motion practice, trial, judgment and the award of damages or other relief. Procedures for the resolution of disputes outside the courtroom are referred to as “alternative dispute resolution” or ADR procedures.

Disputes can arise in a wide variety of business and social contexts, and the substantive areas of law that will apply in a civil proceeding differ just as widely. (Lawyers with an expertise in CRIMINAL LAW try cases in the criminal courts, not the civil court system.) Some lawyers with a litigation practice become experts in a particular area of substantive law, such as INTELLECTUAL PROPERTY, EMPLOYMENT, ENVIRONMENTAL LAW, or one of the many specialty areas of BUSINESS LAW. Other litigators are generalists, handling a broad range of commercial disputes. For the most part, specialty litigation practices are covered under other paths. (Choose the LITIGATION direction in the specific substantive area.) This path focuses on classes recommended by generalists: GENERAL LITIGATION. This path also covers litigation practice in the following substantive areas not found in other paths: TORTS, FAMILY LAW/TRUSTS & ESTATES.

The litigation process includes not only the courtroom argument, but also the process of preparing a case for trial and, if necessary, conducting an appeal from the trial court decision. Pretrial work tends to absorb the bulk of time on any case. In the pretrial process, lawyers gather evidence, interview and depose witnesses, investigate facts, and develop case theories. They also file and argue motions, including motions to compel discovery of the facts and to resolve or narrow issues before trial. Preparing a civil case thus involves both discovery of the facts and often an ongoing refinement of legal theories during discovery. With the huge amount of electronic data created and stored by businesses today, this process can be prohibitively expensive. Pre-trial motions and discovery can take months and even years.

Alternative Dispute Resolution: Parties to a dispute sometimes seek to reduce the delay and expense associated with litigation by turning to alternative methods of dispute resolution. ADR methods may also appeal to parties who prefer a confidential process and hope to have greater control over the selection of individuals who will decide their dispute. Partly due to the increasing caseload of traditional courts, courts are increasingly mandating ADR, so it is important to know these procedures in order to select an appropriate process for a client, and to represent the client in that process.

Arbitration is similar to a private trial where the arbitrator, like the judge, determines the outcome. Mediation, by contrast, is a facilitative process. The mediator does not decide the result, but rather facilitates the resolution of the dispute by the parties themselves. Both arbitrators and mediators must have excellent analytical and communication skills.

Arbitrators, in particular, must rely on excellent analytical skills. Like judges in civil litigation, they are expected to understand the law and do their own research, and not rely solely on the parties’ arguments before rendering a decision. The best preparation to become an arbitrator, therefore, is years of civil litigation experience. Mediators must have excellent communication skills above all. They must be able to build rapport quickly with both sides in order to be effective. Particularly in a dispute with a substantial dollar or business risk, they also need credibility with the trial lawyers for both sides. Significant actual trial experience can provide the basis for this credibility. In other disputes, where the financial exposure is lower, mediators may need less trial experience, and may be effective earlier in their careers so long as they have superior listening and communication skills.

Typical ADR practitioners have had years of prior litigation experience, even prior judicial experience. In large metropolitan areas like the San Francisco Bay Area where there are many ADR practitioners, the market may require either a significant prior career or very specialized experience. Thus, students with a definite interest in an ADR career should connect with ADR practitioners early in their career. They should consider volunteering or offering to “shadow” ADR practitioners within and outside their law firms.