Civil Litigation Attorneys

Overview of Civil Litigation

The term “civil litigation” encompasses a wide variety of legal matters that can range from pre-litigation demands, negotiation and settlement to motion practice, hearings, trial, and even post-trial activity such as judgment enforcement. Civil litigation is a tool for individuals and organizations to ask the judicial branch of the government to help determine or vindicate their rights on one or more issues.

The term “civil litigation” does not include certain inter-family disputes, such as divorce or child custody, nor does it include criminal, juvenile, or drug court proceedings. Some areas of civil litigation are so specialized that they create their own sub-categories for niche law practices, such as patent litigation or eminent domain litigation.

Pre-Litigation Tools

Rarely is it in a client’s best interest to commence an action in court before utilizing at least one of the pre-litigation tools available. For a client, litigation is a costly and stressful endeavor, so if a fair solution can be found without the need to “go to court” it is often, but not always, the solution that is in the client’s best personal or financial interest.

A common misconception is that a person that is deemed legally “prevailing” in a lawsuit, the “winner”, will automatically be awarded and reimbursed for their attorneys’ fees and costs. The American litigation system is based off of English Common Law, which did not allow, by default, for the award of attorneys’ fees and court costs to a “prevailing” party in litigation. This means that, in the United States, for most causes of action, or lawsuits, attorneys’ fees and costs are not guaranteed.

There are some cases in which the attorneys can convince the court to award attorneys’ fees and costs, but the vast majority of attorneys’ fees and costs awarded in courts today are either explicitly authorized under a specific statute or explicitly agreed to in advance by the other party, such as an attorney fee provision in a contract.

In essence, this means that for the majority of potential civil lawsuits, the funds expended or risked by the client to fight the litigation may never be reimbursed by the other side, even if that client prevails in court.

In still other circumstances, attorneys’ fees and costs may only be awarded if certain pre-litigation conditions are met. One such circumstance is a Florida civil theft claim, which mandates that, before the person bringing the lawsuit (the plaintiff) may be awarded attorneys’ fees and costs (in addition to three times their damages), the plaintiff must first make a written demand to the potential defendant and allow them at least 30 days to comply with that demand. See, Fla. Stat. § 772.11 (2022). Only if the property stolen are not returned within 30 days of receiving the potential plaintiff’s demand will they be entitled to attorneys’ fees and costs if they prevail in the lawsuit that follows.

The “civil theft” demand is one example of a pre-litigation tool that often works in the best financial interest of the client. Either the property is returned within 30 days of receipt of the demand for only the cost of the letter or the property is not returned and the client is entitled to three times the value of the property and the award of attorneys’ fees and costs if the client prevails in court.

One of the best values a civil litigation attorney can provide for the client is a full consideration of all options available to the client even before a lawsuit commences and a clear and accurate disclosure of all of the risks involved in starting a lawsuit.

Primary Objectives of Civil Litigation

Attorneys are also known as “advocates” for their clients in the courtroom. As advocates, attorneys are responsible for accomplishing the primary objectives of the client. A few of these possible objectives include, but are not limited to:       

Recovering or Avoiding Damages

The client has been injured in some way and it is the client’s objective to be made whole again. Conversely, a client who is accused of injuring another party’s sole objective may be to avoid liability for damages.     

Recovering Property

Someone has laid claim to the client’s property and the client wants it back. This could be personal property, such as a stolen item, or real property, such as a home.    

Transferring Title

Some litigation, as in quiet title actions and probate, involves clearing title or transferring title to property to its lawful owners.       

Determining Rights or Obligations

Some clients simply need a declaration of their rights or obligations, such as the interpretation of an ambiguous contract or insurance policy.

Selling or Buying Property

When there are two or more individuals on title to a particular piece of property, such as a brother and sister who have inherited a home together, disputes often arise regarding whether to keep or sell it. Certain types of civil litigation allow for either objective to be accomplished.

Protecting Someone or Something

Many clients initiate or defend litigation with the sole objective of protecting someone or something they care about. This can often be accomplished through injunctive relief, such as a temporary restraining order, or in the form of declaratory relief, such as an order from a court determining that a party does or does not have the right to do a certain act.

Once an objective is determined by the client, it is the attorney-advocate’s role to ensure that the legal strategy is, and continues to be, consistent with that objective.

Attorneys in the Courtroom

Civil litigation involves a great deal more than standing in front of a judge and arguing a case. Civil litigation is a multi-step process that can involve the following:

Initial Research

When a case is brought to an attorney, she is legally and ethically obligated to research the facts and circumstances regarding the possible claim and make a reasonable determination of whether that claim has sufficient merit. This involves gathering as much relevant facts as can be made available to her at the outset and evaluating whether, in light of those facts, the law would support the client’s objectives. Even after this research is complete, fact gathering and legal research continue—new facts and newly decided cases may help or hinder the client’s objectives.

Filing or Answering a Complaint

There is a time limit to bring a claim and a time limit to respond to a claim legally asserted. When those claims are brought in Florida civil courts they are called “complaints.” Those to whom those complaints are addressed must respond with an “answer”. Complaints and answers must be crafted carefully and strategically, or they risk barring potential claims or defenses later on in litigation.

Motion Practice

Another key factor in the success of civil litigation is motion practice, or the process of asking (moving) the court to decide on an issue in the litigation. This can involve motions to dismiss the entire case, to strike, or take away, one or more claims or even individual words from a complaint or pleading, and a wide variety of other issues during the litigation. Successful motions require strategic research, timing, and argumentation but can dispose of the entire case, win or lose, days, weeks, or even months before trial was scheduled to start.

Discovery

Discovery is a term used to describe the process of gathering all of the relevant facts. Critical to the success or failure of a lawsuit, discovery is about asking the right individuals the right questions, gathering documents and evidence, and protecting irrelevant or privileged information from consideration in the lawsuit.

Trial

Trial isn’t just the few days spent before a judge or judge and jury presenting a case, it involves months of preparation, research, and strategy. Unlike most movies and television shows, it is rare for new evidence or new arguments to be made once trial commences. Rather, trial is where the best evidence is matched with the best legal arguments to persuade the judge or the jury to grant in that party’s favor.

Judgment

Judgment is the point in litigation where one or more issues are officially decided. This part is out of the attorneys’ hands, but once judgment is rendered an attorney may ask for it to be set aside or may appeal the judgment to a higher court if there is sufficient justification for the court to do allow it.

Hearing on Damages

In many cases, liability is determined separately from the actual amount of damages to be awarded. This means a party may “win” or be the prevailing party in determination of liability, but may nevertheless be awarded little or no monetary damages thereafter. Thus, a lawyer’s role in arguing for higher or lower damages can be even more important than the issue of winning or losing on the underlying issue.

Appeal

Appeals are critical aspects of a litigation that afford parties to a civil lawsuit the opportunity to argue to a higher court for the reversal or alteration of a judgment rendered in a lower court. The higher court appealed to will review the petition and determine whether it sufficiently argues for a justifiable reason to take the case up for review. If an appeal is taken, litigation will continue in the appellate court. This does not re-start the discovery process, but rather, both sides must argue, that there was, or was not, a serious problem, error, or mistake made by the lower court.

Post-Judgment Enforcement

In some cases, once judgment is rendered the case is over. However, in many cases the judge has ordered a party to do something or to pay something, or both. If that person can’t or won’t follow the judge’s order, then an attorney’s job may need to continue. Many attorneys require a separate retainer agreement for ensuring the enforcement of any judgments that they help their clients obtain. If monetary damages are awarded and left unpaid an attorney can ask the court to allow the prevailing party (judgment creditor) to access the other party’s bank accounts, wages, or property to try and satisfy the award. Similarly, a civil litigation attorney can help defend against similar actions against the non-prevailing party (judgment debtor) when exemptions and protections apply.

Attorneys in the Courtroom

Civil litigation involves a great deal more than standing in front of a judge and arguing a case. Civil litigation is a multi-step process that can involve the following:

Initial Research

When a case is brought to an attorney, she is legally and ethically obligated to research the facts and circumstances regarding the possible claim and make a reasonable determination of whether that claim has sufficient merit. This involves gathering as much relevant facts as can be made available to her at the outset and evaluating whether, in light of those facts, the law would support the client’s objectives. Even after this research is complete, fact gathering and legal research continue—new facts and newly decided cases may help or hinder the client’s objectives.

Filing or Answering a Complaint

There is a time limit to bring a claim and a time limit to respond to a claim legally asserted. When those claims are brought in Florida civil courts they are called “complaints.” Those to whom those complaints are addressed must respond with an “answer”. Complaints and answers must be crafted carefully and strategically, or they risk barring potential claims or defenses later on in litigation.

Motion Practice

Another key factor in the success of civil litigation is motion practice, or the process of asking (moving) the court to decide on an issue in the litigation. This can involve motions to dismiss the entire case, to strike, or take away, one or more claims or even individual words from a complaint or pleading, and a wide variety of other issues during the litigation. Successful motions require strategic research, timing, and argumentation but can dispose of the entire case, win or lose, days, weeks, or even months before trial was scheduled to start.

Discovery

Discovery is a term used to describe the process of gathering all of the relevant facts. Critical to the success or failure of a lawsuit, discovery is about asking the right individuals the right questions, gathering documents and evidence, and protecting irrelevant or privileged information from consideration in the lawsuit.

Trial

Trial isn’t just the few days spent before a judge or judge and jury presenting a case, it involves months of preparation, research, and strategy. Unlike most movies and television shows, it is rare for new evidence or new arguments to be made once trial commences. Rather, trial is where the best evidence is matched with the best legal arguments to persuade the judge or the jury to grant in that party’s favor.

Judgment

Judgment is the point in litigation where one or more issues are officially decided. This part is out of the attorneys’ hands, but once judgment is rendered an attorney may ask for it to be set aside or may appeal the judgment to a higher court if there is sufficient justification for the court to do allow it.

Hearing on Damages

In many cases, liability is determined separately from the actual amount of damages to be awarded. This means a party may “win” or be the prevailing party in determination of liability, but may nevertheless be awarded little or no monetary damages thereafter. Thus, a lawyer’s role in arguing for higher or lower damages can be even more important than the issue of winning or losing on the underlying issue.

Appeal

Appeals are critical aspects of a litigation that afford parties to a civil lawsuit the opportunity to argue to a higher court for the reversal or alteration of a judgment rendered in a lower court. The higher court appealed to will review the petition and determine whether it sufficiently argues for a justifiable reason to take the case up for review. If an appeal is taken, litigation will continue in the appellate court. This does not re-start the discovery process, but rather, both sides must argue, that there was, or was not, a serious problem, error, or mistake made by the lower court.

Post-Judgment Enforcement

In some cases, once judgment is rendered the case is over. However, in many cases the judge has ordered a party to do something or to pay something, or both. If that person can’t or won’t follow the judge’s order, then an attorney’s job may need to continue. Many attorneys require a separate retainer agreement for ensuring the enforcement of any judgments that they help their clients obtain. If monetary damages are awarded and left unpaid an attorney can ask the court to allow the prevailing party (judgment creditor) to access the other party’s bank accounts, wages, or property to try and satisfy the award. Similarly, a civil litigation attorney can help defend against similar actions against the non-prevailing party (judgment debtor) when exemptions and protections apply.

Key Points About Civil Litigation

Success in civil litigation requires more than a skilled or aggressive attorney. It requires strategy, patience, stamina, and honesty.

Strategy

Typically the exclusive domain of your attorney, litigation strategy is all about tactics. Attorneys skilled in the Florida Rules of Civil Procedure, Rules of Evidence, and local rules can win a case or maximize a damage award by a carefully crafted motion filed at the appropriate time in litigation.

Patience

Civil litigation is never “quick.” Many cases drag on for years before resolution. Both attorneys and their clients must be prepared for protracted litigation and patient enough to see it through. Impatience can lead to early resolution of a matter, but less than favorable settlement terms.

Stamina

No litigation outcome is guaranteed. Even matters that resolve quickly start out as possibly lengthy endeavors. Civil litigation requires time, energy, and cooperation between the attorney and the client. Clients, therefore, must be prepared to commit those valuable resources toward the case or risk failing from the outset.  

Honesty & Trust

In the legal field, honesty is often married to the word “candor.” Just as patients are encouraged to provide full and honest disclosure to their doctors in order to get the best treatment, clients are encouraged to provide full and honest disclosure to their attorneys in order to obtain the best outcome for their matters. Failing to disclose or misrepresenting a relevant fact regarding the case can not only erode trust between attorney and client, it can lead the court to awarding the entire case to the other side without any regard to the merits.

How to Prepare for Litigation

Great civil litigation attorneys prepare their clients for the lawsuit by setting clear expectations from the beginning. The best way to ensure that this happens is for clients to follow these best practices:

Be Honest

Clients should be clear about the facts of the case without reservation and inform their attorneys about any particular limitations on time or money. Clients must also be up-front about their objectives. For example claiming the lawsuit is “simply about the principle” when the true objective is maximizing a monetary award, will inevitably lead to distinct outcomes in litigation.

Get and Stay Organized

Many lawsuits are won by the party that is most prepared and organized, rather than the one that has the best legal argument. Before meeting with an attorney to discuss a case, potential clients must consider all of the facts, information, documents, and evidence that may be relevant and try to organize them in an accessible manner. The more organized a client is, the more likely an attorney can effectively evaluate the matter, determine options for resolution, and predict the chances of success in court. Similarly, once litigation commences, the organized client will have a greater understanding of the underlying evidence, be prepared to answer questions confidently from the other side and be able to quickly and easily comply with requests for evidence.

Manage Expectations

Whether a client is bringing or defending a lawsuit, “success” and satisfaction with the result often depends on the client’s expectations. No matter how great the legal argument or how much evidence a client has or doesn’t have, no outcome is guaranteed. Litigation is a gamble, a jury trial even more so. There is no guarantee that a judge will agree with a client’s argument or that the judge will even decide to honor what appears to be clear case precedent. There is no such thing as a “slam dunk” case—clients who are encouraged to believe otherwise are often disappointed even in cases in which the client prevails but aren’t awarded the amount expected.

Find a Trusted Advisor

Litigation requires direct cooperation between the client and the client’s attorney. Clients must find an attorney who is a trusted advisor. The stakes are often extremely high in civil litigation leading to high stress and tension. Clients who have low trust or confidence in their attorney advisors compound stress and tension on the attorney-client relationship. When the attorney-client relationship is strained, the client is less likely to trust the advice and recommendations given by the attorney and may make rash and ill-informed decisions regarding the case they may come to regret. Thus, for the most favorable outcome of litigation, clients who have doubts about their advisor’s skill, qualifications, or overall trustworthiness should address their concerns with the attorney as soon as they arise or seek to switch to counsel they trust as soon as practicable.

Types of Litigation

The United States has an “adversarial” system—meaning in most cases there has to be some kind of dispute between one or more parties for the courts to allow a case to proceed. In some cases, the adversaries are obvious—personal injury, contested divorce, breach of contract, etc., in other cases, the “adversaries” seems abstract or illusory—such as a name change, guardianship, or an uncontested probate. In cases like these, the adversary is often assumed to be unknown creditors, the public, or the government in general rather than a specific individual. However, even these cases require careful planning, strategy, and time in court. Here are a few of the popular types of civil litigation cases Easler Law takes on (but this is by no means an exhaustive list):

Real Estate Litigation

• Real Estate Partition Actions

• Quiet Title Actions

• Easements

• Landlord Eviction Cases

• Breach of Contract

• Construction Defect Cases

• Fraudulent Instrument Cases

Probate

• Contested wills/trusts/estates

• Breach of Fiduciary Duty

Business Litigation

• Breach of Contract/Contract Enforcement

• Founders’ Disputes

• Corporate Actions/Direct/Derivative Actions

General Civil

• Civil Theft Claims

• Contract/Indebtedness Claims

• Settlement/Negotiations

When to Seek the Advice of an Attorney

Civil litigation is fraught with critical rules and deadlines that are seldom excused when violated. Potential clients who have learned of a pending case against them or have learned of a possible claim should seek the advice of an attorney immediately to avoid losing on procedural grounds alone.

For those with a possible claim against someone else, in addition to rules related to statutes of limitation and statutes of repose, there are common law concepts such as “laches” which work to bar the claims of those potential plaintiffs who wait too long to bring forth their claims—even when those claims are brought within the statute of limitations.

Likewise, those potential clients concerned about a possible or threatened claim against them should seek the advice of a civil litigation attorney as soon as possible to determine the potential merits of a claim, any possible defenses, and possible counterclaims that may exist. In this way, clients can either prepare a defense strategy or preemptively resolve any issues before they can arise in the first place.

Finally, even if no claim is ready to be brought by a potential client or has been brought against a potential client, an attorney can help evaluate potential litigation risks and develop strategies, policies, and procedures to lessen those risks and help prevent them from arising in the future. An attorney can review or draft contracts, company policies and procedures, or even conduct site visits and observe client operations in action to determine possible risk exposure clients hadn’t considered.