- Rear Admiral Gene R. LaRocque
Updated April 2013
Civil litigation generally includes all disputes that are formally submitted to a court, about any subject in which one party is claimed to have committed a wrong, but not a crime. In practice and in ordinary conversation, lawyers and others concerned with civil litigation tend to treat many specialized subjects as outside this definition, such as labor law, as well as divorce actions and even small claims cases, even though all of these are technically types of "civil" litigation.
Large numbers of citizens become involved in civil litigation, even if only as members of a "class action," in which a product or service they have bought along with many other people is alleged to be defective and a mass claim is filed on their behalf. The most common other type of case that fits under "civil litigation" is accident lawsuits.
Civil litigation takes many forms, depending on the type of case. But in general, this is the legal process that most people think of when the word "lawsuit" is used. A typical lawsuit begins with filing a complaint in court; the other party gets notice of the complaint and is given an opportunity to answer. There may be opportunities for both parties to "discover" what each one intends to present as evidence at a trial; and a trial is then scheduled. How formal the trial is, and whether or not it uses a jury, depends on the type and the location of the case. Within the United States, most such cases are heard in the state courts but some are heard in federal court, so there are 51 slightly-to-significantly different systems.
Endless streams of movies and TV shows illustrate what a trial process looks like, though usually with much more drama than the real thing. The needs of drama have particularly obscured a central fact of the litigation process, which is that very few cases — only a few per cent of those filed — actually go through a trial. All the rest are resolved before the trial, although this often happens only just before the trial, i.e. after a great deal of money has been spent preparing for the case. Increasingly, however, settlements are reached earlier, through use of one of several alternative dispute resolution (ADR) procedures such as arbitration and mediation. Yet civil litigation remains an indispensable complement to ADR; it is what "alternative" dispute resolution is alternative to.
Litigation has long furnished a wonderful subject for writers, and examples are many throughout the literature of many nations. The all-time classic may be the fictional Jarndyce vs. Jarndyce, an endless lawsuit over the terms of a will which forms the backbone of Charles Dickens' Bleak House. A more recent example of a highly-publicized case was the very real environmental dispute recounted in Jonathan Harr's book A Civil Action. The fact that major lawsuits often are highly publicized, however, tends to draw casual readers away from noticing that most civil litigation is on a much more modest scale. Yet this process inherently involves forces that, once invoked, are hard for an individual litigant to keep under control.
For example, a typical "personal injury" lawsuit — the most common form of civil litigation — arises when one driver claims it was the other who was at fault in a car crash. If the second driver denies the claim, the first may file a lawsuit for the repair costs and for compensation for injuries. In some cases, the amount sought may be in the millions, such as when the driver or a passenger has been permanently disabled. But in most cases, the injuries have been less, the car was repairable, and amounts claimed are in the thousands or tens of thousands of dollars. Such a lawsuit might involve a total of a few hours' or at the larger end, a few days' preparation by each party and their attorneys, with a few hours to a day or two spent in the actual trial. But the total time spent may also involve months or more of delays in waiting for injuries to show up so that a complete claim can be made, and in waiting for a court date. The length of time taken overall varies greatly, not only from case to case, but from geographic area to area: some court systems are fairly current, while others have large backlogs of cases. Each party will have to give testimony if the case goes to trial — and often, before the trial as well, in a "deposition" conducted by the opposing party's lawyer without a judge present. In the U.S., the parties' insurance companies will typically manage the process in a minor auto accident case, and even if the injuries are major, for the defending party the choice of a lawyer may be dictated by the insurance company.
The overall result is that the "personal injury" lawsuit often seems less "personal" than either the injured person or the defendant expects. It also cannot be emphasized too much that a full-blown trial followed by a judgment is the rarest outcome in such a case. Because the delays and costs weigh upon all parties, there is a better than 90% likelihood that the case, large or small, will be settled before the trial begins. A significant percentage of the remaining cases settle even after that point.
Civil litigation is the "default" process , i.e. the process that will be used if no other arrangement is agreed upon, for all sorts of asserted wrongs. It therefore applies to an enormous range of human behavior, even when both those asserting and those denying that behavior would go to great lengths not to use this process — because they may be unable to agree upon anything else. Apart from its role as process of last resort, civil litigation is the process a party needs if what is sought, above all other considerations, is a public vindication of asserted rights.