Litigation Techniques

By Cindy Hill
Litigation Techniques
Cindy Hill

Litigation is a the method of dispute resolution used in most Western-culture court systems. Litigation techniques are the strategies and approaches used by attorneys to gain the upper hand throughout the litigation process from discovery to appeal. Litigation techniques range from basic lawyering skills to the use or high-tech trial exhibits.

Definition

Princeton University Worldnet defines "litigation" as "a judicial contest to determine and enforce legal rights." In American court systems and others that follow the American or British model, litigation is an adversarial contest like a sports event, where each side musters its strongest arguments. A judge or jury ultimately determines the winner, though most litigation is settled by the opposing parties short of final judgment. Strengths and weaknesses of each side's case become apparent through the discovery process and the parties weigh that consideration against the cost of continued litigation.

Misconceptions

Popular television shows and movies often show clever litigation techniques such as springing a surprise witness at trial who turns the case around. While real litigation does hold surprises, they are never as dramatic as the entertainment industry makes them out to be. In civil and criminal cases in most jurisdictions, the discovery process ensures that each side knows the other party's witness list and evidence long before trial. Real litigation techniques rely on solid lawyering, investigation and research, not on clever tricks.

Discovery

Parties to litigation engage in the discovery process to learn about each other's case. Rules of civil and criminal procedure describe the range of discovery options available to the parties, including requests for documents or evidence production, written questions called interrogatories, or in-person witness interviews called depositions. One limitation is that prosecutors can not make inquiries of criminal defendants, who have a constitutional right not to testify against themselves. A thorough investigation of the case and detailed research regarding the underlying facts and law are the most important discovery techniques.

Dispute Resolution

Litigation participants may pursue alternative dispute resolution to avoid trial costs. Negotiation is the technique of direct discussions between the parties or their lawyers. Mediation uses a third party to facilitate negotiations. Arbitration, frequently used in contract or labor disputes, involves allowing a third party to make a binding decision in the case. Alternative dispute resolution may be an effective technique when issues like fairness or impact on other people not involved in the litigation are key factors; these issues may not be given full consideration in courts, which are constrained to look only at the law.

Trial Strategy

Trials follow rigid procedural rules, but a skilled attorney can exercise creative techniques within the confines of these rules. Trial strategy decisions include whether to employ expert witnesses, whether to pick one single argument or take a shotgun approach, and whether to present a conciliatory or warlike tone. Defense attorneys may choose whether to delay opening arguments until after presentation of the plaintiff's or prosecutor's case, and criminal defense teams must decide whether the defendant will testify. Every attorney will have a different approach to these decisions, which may also vary depending on the facts of each case.

Demonstrations

Trial exhibits and demonstrations present fertile ground for creative litigation techniques. Classic low-cost courtroom techniques include sitting silently for the full time period that a witness testified an event took to happen, using 2-by-4 boards laid out on the courtroom floor to demonstrate distances, or lining up shot glasses of liquor on the jury rail to demonstrate the number of drinks a witness consumed. Technology creates new, albeit expensive, opportunities for trial demonstrations including informational videos or forensic animation.

Appeals

After trial, many cases go on to appeals courts for review of legal decisions made regarding evidence at trial. Appellate litigation techniques include determining whether to focus all appellate resources on one most promising issue, or to pursue all potential issues. Briefs and arguments are strictly limited in length on appeal, so the choice of arguments to present is critical.

About the Author

A freelance writer since 1978 and attorney since 1981, Cindy Hill has won awards for articles on organic agriculture and wild foods, and has published widely in the areas of law, public policy, local foods and gardening. She holds a B.A. in political science from State University of New York and a Master of Environmental Law and a J.D. from Vermont Law School.