The founders of our government believed that "truth" would only be found through an adversarial process where one side presented its case, the other side had the opportunity to poke holes in the story, and vice versa. Our democracy is based, in part, on this adversarial system called generically "litigation." Litigation is how our justice system settles controversies or disputes between and among persons, organizations, and the State. There are many rules, regulations, courts, tribunals and hearing venues, where we all, at some time in our lives, have our disputes settled through mediation, arbitration, trial or other resolution, including judgment.
When the case is first started, litigation refers to the pleadings and discovery phase which may take place outside the hearing of any tribunal, court, or judge. Often parties will exchange papers or other documents, ask deposition questions, and hire various professionals to help learn the claims being made, explain the factual issues in the case, or simply to show the other side that their position is not factually or legally viable. Both sides develop the theme of their case through the use of various procedures designed to foster full disclosure of relevant facts.
In the adversarial system, however, parties often withhold certain information so that the other side cannot gain some sort of advantage. Your attorney must be trained and experienced to spot when the information provided by the other side just doesn't add up. For that reason, litigation attorneys are often cynical as they try to understand why the attorney, the witness or the piece of evidence is not what it the other side contends. Trial is the culmination of all the hard work by both sides to find and determine the facts that make up the dispute. During the trial process, judges generally rule on issues of law which are based upon facts learned through the pre-trial process and presented as "evidence" at trial or during motions.
If a party loses the case, there is often a right to appeal to another court or body. If there has been an error, the losing party may choose to appeal the decision to the relevant authority. Generally, appellate courts are limited by the evidence presented to the lower court through documents, evidence, and testimony presented at the trial.
Sometimes trial courts just get it wrong, or there is no clear answer, so we have appellate advocacy to settle the issues of law. Appellate courts review how the law (as made by judges or the legislature) applies to the facts of the case.
The adversarial system works if both sides vigorously and aggressively test the credibility of each witness or piece of evidence. The system fails if the lawyer (advocate) fails to investigate, learn and then present the evidence clearly or fully. The system also fails if the person or tribunal deciding the facts or the law has some kind of bias or inability to comprehend the issues.
Contact us today. Klose & Associates can help you at any stage of this litigation process. Put our business litigation experience to work for you.