As a litigator, I frequently receive referrals from transactional lawyers who encounter clients with seemingly irreconcilable issues. While referring attorneys recognize that litigation may provide a solution to a situation, they often are not quite sure how to present litigation to their clients as a beneficial process.
To assist lawyers with clients facing unsolvable issues for which litigation may provide a solution, I prepared this revised presentation of a post on my blog. This new version provides practitioners with a primer on the litigation process that focuses on how litigation can benefit their clients.
Whether you are a transactional lawyer or a litigator, you undoubtedly are familiar with the common criticism of litigation as a time-consuming, costly, and unnecessary process. While litigation can be expensive and take years to resolve, it also is an exceedingly effective way to end disputes that otherwise cannot be resolved.
At its core, litigation is an orderly process with built-in opportunities for compromise all along the way. It has the ability to bring meaningless fighting and indecision to a conclusion.
Through the process of litigation, a decision can be reached that gives everyone finality, either through settlement or a verdict from a judge or jury. The litigation process has the power to resolve otherwise irreconcilable conflicts — a power that the parties are lacking when they cannot reach a solution between themselves.
No one knows better than a practicing attorney that people do not agree on everything all the time. When there are economic interests — money — at stake, legal rights likely exist. The parties protect and assert those rights through the litigation process.
When people cannot resolve a dispute by themselves, our legal system provides an orderly process and a specific framework for protecting legal rights and interests and resolving disputes. The litigation process includes laws and rules to safeguard the integrity of the proceedings and the impartiality of the adjudicators and mediators.
Litigation is necessary when negotiations do not yield progress in settling the parties’ differences. After a party files a lawsuit, there are deadlines for making decisions — and those deadlines mean progress. For example, the court's scheduling order includes deadlines for adding parties, finishing discovery, and completing dispositive motions.
In addition, in Minnesota, a structured process called Alternative Dispute Resolution (ADR) — such as mediation — is mandatory for most civil cases. Whether through ADR or the formal court process, litigation does not mean the end to negotiations, but the beginning of more informed negotiations. As positions and success in trial become more evident as the process moves forward, negotiations between the parties are more likely to bring resolution.
In some cases, filing an action is necessary to protect a person’s rights. When a statute of limitations is set to expire, the only way to prevent losing legal rights is to file a lawsuit. After an action commences, there still is time for the parties to negotiate and attempt to reach a resolution without going to trial.
As an experienced litigator, I wholeheartedly agree with my transactional colleagues on a very important point: Litigation is a last resort to use only when the parties fail in their efforts to resolve a matter between themselves.
If negotiation efforts fail, and one of the parties initiates a court action, the litigation process enables both parties to collect information and evidence in an orderly manner. That process lays the groundwork for renewed settlement efforts.
When the parties exchange evidence in the early part of the process, they often become aware of facts that change the situation for one or both sides of the dispute. At that point, the lawyers have the opportunity to explore potential settlement terms for their respective clients in a different context than existed prior to litigation.
Throughout the process, litigation provides built-in stages with opportunities for compromise. From the beginning, judges encourage the parties to attempt to reach a settlement, whether through mandatory ADR or otherwise.
Even if a case does go to trial, the parties may reach a settlement before the conclusion of the trial and delivery of the verdict. Again, as the evidence starts to unfold — but in a public forum rather than private setting — one or both parties may finally realize that compromise and settlement may very well be a better result than a judge or jury will provide.
Litigation achieves finality even when the parties cannot agree to a settlement. In that case, the verdict from the judge or jury brings the finality that the parties could not achieve through negotiation.
At the Dave Burns Law Office, my practice focuses on litigation in the probate courts in Minneapolis and St. Paul, as well as bankruptcy litigation in the United States Bankruptcy Courts in the Twin Cities.
While most estates do not end up in probate court litigation, there are a number of circumstances in trust and estate law that give rise to the need for court intervention, including:
Estate disputes like these often involve individuals with conflicting interests who have lifelong family relationships. Those circumstances complicate the situation and add an emotional dimension that creates additional stress.
Sometimes, estate disputes can be resolved through discussions and negotiations. At other times, a formal probate court litigation process becomes necessary to finalize a resolution and enable the parties to move forward.
Bankruptcy disputes revolve around the rights of debtors and creditors. They also involve circumstances and proceedings in which negotiation often produces a resolution, but sometimes litigation is the only way to reach a final decision.
Regardless of the type of litigation that is involved, I am committed to achieving the best possible outcomes for my clients, using strategies based on the power of aggressive litigation as well as the negotiation process. My practice and style of representation reflect my commitment to integrity and ethics, in addition to my dedication to advocating for my clients. My representative work illustrates some of my accomplishments of behalf of clients.
I welcome transactional attorneys who have a contested estate matter that may require probate litigation or bankruptcy litigation to contact me at (612) 677-8351 or by emailing firstname.lastname@example.org. I work with clients throughout Minnesota and am available to meet in both Minneapolis and St. Paul.
Author’s Note: This article is an adaptation of my blog post, Litigation: The Power of Process. The original presentation focused on explaining the benefits of litigation in lay terms for my clients and potential clients. Referring attorneys may wish to share that article with clients who are considering or facing litigation.