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The process of engaging in legal action is known as litigation. If either party is dissatisfied with the outcome of the litigation, they may seek an appeal, which is the act of requesting that a higher court reverse a lower court's decision. Before entering into litigation, you should know what to expect, especially in the event that your case ends up being appealed.

Litigation – What to Expect

Prior to entering into any form of litigation, you should have some idea of the stages involved along the way. Stage one centers around the initial demand that Party A makes to Party B in order to resolve the dispute. This is followed by Party B's response and often some informal discussion. A lawyer can help determine whether your demands at this stage are realistic and can also help prevent you from making admissions that may damage your case.


Stage two usually involves a lawyer's letter, which puts a formal “spin” on the situation when the parties are unable to resolve the dispute on their own, especially when one party has been negligent in responding to the demands of the other. There may not be any legal significance to such a letter, but it sends a serious message, and since some states require a formal demand be made before you file suit, it can be helpful in that regard as well.

The next step is generally focused on the pre-litigation settlement discussion, which is an informal discussion involving both parties and their attorneys.

If nothing is resolved during the pre-litigation settlement discussion, you now have the option to either file suit or make a demand for arbitration, which differs from a conventional lawsuit in that the dispute is settled outside of the court system by an impartial third party or panel. At this point, the formal litigation process has officially begun and there are specified time limits governing the amount of time you have to take action.

During the next phase of litigation, the party that is served with legal process must provide a formal response within a designated time frame or otherwise lose its case by default.

The next stage may consist of some pre-trial discovery, or in other words, gathering of evidence by both parties in order to ascertain what led to the dispute. This evidence may include witness testimony, carefully examined documentation, and even physical evidence.

Next, either side may make "motions," the purpose of which is to narrow the issues or even have the court or arbitrator decide the case without taking it to trial.

Just before the trial, the court or arbitrator will call for a pre-trial conference in order to further narrow down the issues and, perhaps, get the parties to agree to a settlement.

The next step is the actual trial, either by judge alone or with a jury. In arbitration, the trial is referred to as a hearing. A variety of factors will determine the length of this stage. But eventually, you will hear your judgment. If you feel the outcome of your case is inappropriate, you may pursue an appeal.

Appealing Your Case

Most decisions of a trial court are subject to review by an appeals court. In the event that you do decide to appeal your case, be prepared for a completely different process than you faced during your trial. For one, there is no jury in an appeal. Juries are often present during trials to weigh the facts, while judges are present to determine the law. Since the appeals court is expected to accept the facts as they were accepted in the original trial, there is no need for a jury. In the same respect, there is no need for the lawyers to present witnesses or other forms of evidence. The appeal is merely a review of the trial court's application of the law. And while only one judge presides over a trial, several judges hear an appeal at once.

An appeal is a more scholarly process than a trial. Central to each party's case is the appellate brief. Referencing applicable case law and statutes, the losing party uses this brief to argue that the trial judge applied the law incorrectly, while the victorious party maintains in their brief that the trial court's decision was correct. Though appeals do include a short period for oral argument, judges often use this period to ask the lawyers questions that have been prompted by the briefs.

A party that loses its case in a state or federal appeals court may still appeal to the state supreme court or the U.S. Supreme Court, though review in these courts is discretionary as they receive more requests for review than they can handle.

If you do decide to appeal your case, remember that the course of an appeal is a lengthy one and your best chances of success rest with hiring an experienced appellate attorney.

By Lindsay Rech           


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