In many ways during the lead up to the actual trial litigation attorneys are trying the case to try and persuade the other side of the likely outcome much the same way they will try the case in front of the judge and jury.
Alternative Dispute Resolution: State and federal courts have a variety of formal and informal mechanisms in place to encourage the two sides to settle a case before a full trial. These mechanisms are sometimes called alternative dispute resolution because they are an alternative to litigation, even though they are increasingly a formal part of the litigation process.
Some of the alternatives to litigation include negotiation, mediation, and judicial settlement conferences. Virtually every litigation lawyer regularly uses negotiation throughout the litigation process. Some courts will require the two sides to certify that they have tried to settle the case outside of continuing the litigation.
Mediation and judicial settlement conferences bring in a third party to help the two sides arrive at a mutually acceptable solution. Often the solutions arrived at in mediation are more creative than what a judge or jury could decide under the law.
There is no requirement that the two side settle the case. Each side has a right to push the case all the way to a trial.
Discovery: Under the state and federal rules of civil procedure each side of a lawsuit has the right to request information from the other side about the case. This is called the discovery process. Some of the tools lawyers make the most use of in the discovery process include requests for production of documents, depositions, and interrogatories. The discovery process may also allow the two sides to subpoena documents related to the litigation from third parties.
Discovery is a way for the lawyers to gather evidence and to gain a better understanding of the facts of the case. Often the discovery process exposes the flaws in one side of the case more than the other. This can lead to a case being settled.
Motions Practice: An important part of litigation is motions practice. Litigation attorneys will file a variety of different motions during the course of the case. Motions can be filed to have certain claims of defenses thrown out before the trial starts, to compel the other side to cooperate with discovery, and to try and limit the type of evidence that will be allowed at trial.
Lawyers may also try and protect their client’s interests by requesting injunctions or temporary restraining orders to keep the other side from taking any action that would jeopardize the rights of the other side as it relates to the litigation.
Appeals: Sometimes a case goes all the way to a trial and a verdict is entered. But, that is not always the end of the case. Sometimes one side, or both sides, will file an appeal because of a legal error. The appellate process is much different from the regular litigation process. There is no discovery process and most of the arguments take place on paper.
After an appeal is filed the two sides may still end up settling the case.