Litigation attorneys, also known as “litigators” or “trial lawyers,” represent plaintiffs and defendants in civil cases and manage all phases of the litigation process from investigation, pleadings and discovery to pre-trial, trial, settlement and appeal.
Below is an overview of the diverse tasks litigation attorneys undertake during the course of litigation. These tasks vary based on the nature of the dispute, the experience level of the attorney and whether the litigation attorney is representing the plaintiff or defendant.
Initial Case Investigation/Assessment
Litigation attorneys often conduct an initial case investigation to determine, in the plaintiff’s case, if enough evidence exists to file a lawsuit or, in the defendant’s case, what evidence exists to defend a potential suit. The investigation process may include locating witnesses, taking witness statements, gathering documents, interviewing the client and investigating the facts leading to the dispute. Litigation attorneys often engage in pre-litigation settlement discussions to resolve the matter before a lawsuit is filed.
Litigation attorneys draft a variety of pleadings and motions on behalf of the plaintiff or defendant. Plaintiff attorneys will draft a summons and complaint to commence the lawsuit. Defense attorneys collaborate with the client to investigate the allegations of the lawsuit and formulate responses. Litigation attorneys also draft a variety of motions including motions to strike, dismiss, amend or change venue and motions for judgment on the pleadings.
The discovery process involves the exchange of relevant information between the parties. Litigation attorneys employ a variety of discovery devices to gain information relevant to the lawsuit. These devices include interrogatories, depositions, requests for production and requests for admission. Litigation attorneys may also examine physical evidence and inspect the scene of the accident as well as collect, process and analyze information gathered during e-discovery. Litigation attorneys also draft and argue discovery-related motions including motions to compel, protective orders and summary judgment motions. The discovery process helps litigators gain relevant information, identify issues and formulate a case strategy.
In the weeks before trial, litigation attorneys wrap up discovery and prepare for trial. In the pre-trial stage, litigators consult with and advise clients; retain expert witnesses; attend pre-trial conferences and develop a trial strategy based on the facts and evidence. Litigation attorneys also conduct pre-trial depositions of experts and key witnesses; prepare demonstrative to be used as trial exhibits; and draft and argue pre-trial motions.
The majority of all lawsuits filed in civil court are settled prior to trial. In cases that proceed to trial, litigation attorneys are busy around the clock presenting their case before the judge or preparing for the next day in court. In the trial stage of litigation, litigators collaborate with experts and clients to craft a trial theme, identify strengths and weaknesses in a case; develop persuasive arguments; prepare witnesses for testimony and draft and argue trial motions.
At trial, litigation attorneys conduct voir dire, select a jury and present their case in court. Litigation attorneys present opening and closing statements, examine and cross-examine witnesses and craft a persuasive story for the fact-finder (judge or jury) through testimony and evidence. Litigation attorneys also prepare jury instructions and conduct post-trial interviews of the jury.
Most cases never reach trial but instead are settled in order to eliminate the risk and expense of trial. Litigation attorneys may settle a case at any time during the life cycle of the litigation.
At settlement, litigators engage in negotiations with opposing parties; participate in mediations and settlement conferences with the parties and the judge; and create settlement brochures, agreements, releases and other settlement materials.
If the litigation attorney does not obtain a favorable outcome at trial, he or she may appeal the case. Litigators draft post-trial motions; identify and preserve issues for appeal; develop appellate strategies; gather evidence for the appellate record; research procedural issues; draft appellate documents; and present oral arguments before appellate courts. If the case is particularly significant or complex, litigators may retain the assistance of attorneys who specialize in appellate practice.