I call myself a litigation lawyer. Litigation is almost all I do. Sometimes, potential clients come to me without understanding my purpose. This post should help explain what a litigation lawyer is.
Here is a short answer: a litigation lawyer is an expert in protecting clients’ rights through the courts. A long answer is below.
There are two kinds of lawyers: litigation and transactional. A litigation lawyer knows how to present your side of a dispute to a judge to protect your rights and maximize your chances of getting a favourable decision. A transactional lawyer tells you what your rights and obligations are when you deal with anyone other than the courts or tribunals. For example, when you close a business deal, you want the deal to go as much as possible the way you understand it. A transactional lawyer will help you draft the contract so you have a legal leg to stand on if the deal goes off the track. A well-drafted contract will “stand up in court,” and the courts will enforce it as closely to your vision as possible.
A transactional lawyer will usually not enforce the contract. You will hire a litigation lawyer to do it because it’s the litigation lawyer’s job to know how the courts work and what’s the best way to argue your case before a judge.
Here are a few examples. Negotiating a business deal, drafting a will, preparing a severance package for a terminated employee, applying for a rezoning permit are all jobs for transactional lawyers. Without more, it’s clear there is no dispute over who owes what to whom in these cases.
But the moment someone says you broke the agreement, or the city denies your rezoning application, or someone contests a will, or the terminated employee rejects your severance package, you have a dispute. Someone disagrees with you. This is different from the agreement inherent in signing a contract or getting a rezoning permit approved.
Transactional lawyers help you deal with others on common terms. Litigation lawyers help you impose your terms on others.
What is a lawyer? It’s a trained and vetted expert in telling you what to do. Lawyers don’t tell you how to build a bridge or treat a disease. They don’t give you engineering or medical advice. They give you legal advice. They tell you how the law will treat your case. They do it by comparing your facts to other cases to see how the law treated them before. Transactional lawyers do it to make your deal or other relationship as legally sound as possible. Litigation lawyers do it to make your pitch to a judge as legally sound as possible.
Although most civil cases don’t go to trial, the trial is the ultimate leverage of a litigation lawyer because it is usually the first and the last chance to make your case to a judge. It’s amazing that most of litigation is out of court, but good litigators always prepare for trial.
You don’t have to go through the court system to resolve your dispute, but the courts always have the final say over disputes. If your lawyer chooses an “alternative dispute resolution” strategy, he or she must still understand how it will play out in court. Any party can force the dispute into the court system no matter what. That’s what the rule of law is about.