Litigation: The Power of Process

Statue of justice

The American civil court system provides individuals, businesses, and other entities with an exceedingly effective way to end disputes. The orderly litigation process provides a framework with the power to resolve irreconcilable conflicts when the parties cannot reach a solution between themselves.

While litigation can be time-consuming and costly for some disputes, the process provides built-in opportunities for compromise from the beginning. As the parties gather information throughout discovery and pre-trial motions, factual and legal issues come into focus. For all parties, settlement under known terms often becomes the preferred alternative to an unpredictable verdict from a judge or jury.

The judicial process provides finality either through settlement or a verdict. While there may be an opportunity for appellate review of a verdict, the system ultimately yields a final resolution of the dispute.

What Is Litigation?

Litigation refers to adversary proceedings in federal and state civil courts. The process begins with a party serving a complaint on the other party. There is considerable time for the parties to reach a compromise before the matter is even filed with the court.

Established legal principles like justiciability, standing, statutes of limitations, stare decisis, and res judicata, together with the requirements for jurisdiction over subject matter, parties, and property, place limits on access to the courts for adjudication of disputes. Those same principles provide finality when the process ends.

Laws and rules set by the courts establish the framework under which a civil court action proceeds. The process includes discovery procedures for exchange of information between the parties, pre-trial motions during discovery, alternative dispute resolution in some cases, and ultimately a trial, if the case is not resolved through negotiations and compromise between the parties.

In Minnesota, a structured process called Alternative Dispute Resolution, which includes mediation, is mandatory for most civil cases. ADR sometimes can help parties resolve disputes and preserve relationships even before they resort to litigation.

Whether through ADR or the formal court process, initiation of litigation does not mean the end to negotiations, but the beginning of more informed negotiations. As positions and likelihood of success at trial become more evident during the process, negotiations between the parties are more likely to bring resolution. Statistics indicate that about 95% of civil court cases reach resolution through settlement or ADR and never reach the trial stage.

When Is Litigation Necessary?

Experienced transactional lawyers and litigators agree that litigation should be used only as a last resort. If the parties and their legal counsel cannot resolve a matter without resorting to a court action, the litigation process provides a framework and timeline for resolving the dispute. Filing a court action establishes deadlines for completing each stage of the process through the court's scheduling order.

Because statutes of limitations set time limits for filing a formal court action, initiating litigation is sometimes necessary to preserve a party’s legal rights. Filing a formal court action tolls the statute of limitations for the duration of the litigation. After legal rights are preserved, there is more time for the parties to negotiate and attempt to reach a resolution without going to trial.

Litigation Brings Finality

The litigation process provides built-in opportunities for compromise from the beginning. Judges encourage the parties to attempt to reach a settlement, whether through mandatory alternative dispute resolution or otherwise.

When evidence is being exchanged by the parties in the early part of the process, facts often come to light that change the situation for one or both parties. At that point, the lawyers can explore potential settlement terms for their respective clients in a different context than existed prior to initiation of the action.

Even if a case does go to trial, it is not unusual for a settlement to be reached before the conclusion of the trial and delivery of the verdict by the judge or jury. Again, as the evidence starts to unfold — but in a public, rather than private, forum — one or both parties may finally realize that compromise and settlement may very well be a better result than a judge or jury might reach.

If a matter does not end with a settlement, the attorneys for both parties present their respective client's position at a trial before a judge or jury. In that case, the verdict brings the resolution that could not be achieved through negotiations.

Minnesota Probate Litigation and Bankruptcy Litigation

My practice at Dave Burns Law Office focuses on representing clients in the state probate courts in Minneapolis and St. Paul and bankruptcy litigation in the United States Bankruptcy Courts in the Twin Cities. I also handle related bankruptcy court proceedings, such as contested matters and Rule 2004 examinations. Many of my clients are referrals from probate and bankruptcy lawyers who do not handle litigation but have a client facing a potential court action.

While the two types of court actions in my practice differ substantially, they share all the important attributes that make litigation a powerful process. I leverage the opportunities that the process provides for expeditious resolution of probate and bankruptcy disputes, while fully protecting my clients’ interests and rights.

Probate Litigation

The probate process for an estate usually does not involve probate court litigation. However, there are many circumstances in trust and estate law that give rise to the need for court intervention. Probate litigation includes disputes relating to estates, trusts, fiduciary duties, powers of attorney, guardianships, and conservatorships.

Probate and estate disputes often involve people with conflicting interests who have lifelong family relationships, which complicates the situation and adds an emotional dimension that creates additional stress. Sometimes the disagreement can be resolved through discussions and negotiations. At other times, a formal court action becomes necessary to finalize a resolution and enable the parties to move forward.

Bankruptcy Litigation

A bankruptcy case itself is not litigation. In most cases, the bankruptcy petitioner presents detailed financial information to a bankruptcy trustee through a procedure set by the U.S. Bankruptcy Code, and the bankruptcy court ultimately approves the bankruptcy discharge.

However, in a small percentage of bankruptcy cases, a matter arises that requires resolution by the bankruptcy court. A creditor, the bankruptcy trustee, or the debtor may raise the issue by filing an adversary proceeding with the bankruptcy court. These actions may involve serious allegations of wrongdoing by the bankruptcy petitioner, such as fraud, etc. The court resolves the dispute as a separate action within the bankruptcy case. The separate court action constitutes bankruptcy litigation.

If a bankruptcy attorney represents the petitioner in the underlying bankruptcy, that attorney may handle the adversary proceeding. However, in many cases, the debtor separately retains an attorney with specialized experience in bankruptcy litigation, because adversary proceedings require different knowledge and skills than the bankruptcy case itself.

Inquiries Welcomed

Regardless of the type of dispute, I am committed to achieving the best possible outcomes for my clients, using proven strategies based on the power of the litigation process as well as negotiation. If you wish to discuss a situation involving potential bankruptcy litigation or probate litigation, please contact me by calling (612) 677-8351 or by sending an email to I work with clients throughout the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul. I welcome inquiries from clients and referring attorneys throughout the State of Minnesota.

Categories: Litigation

The Dave Burns Law Office hopes you find this article helpful. But please do not rely on it as legal advice. The law changes regularly and the outcome of any legal matter depends on its unique circumstances. View full disclaimer