You’ve made a smart decision to begin researching the ins and outs of a litigation proceeding. The truth is many people rush into these types of proceedings without having a clear understanding as to what’s involved. We’ve put this together to help clear up some of the misinformation regarding the litigation process and to provide you with some guidance as you navigate this area of the law.
Below is some rudimentary information about litigation terms, documents, processes, and a broad overview of some frequently litigated issues. For more information, download our Litigation FAQs (Frequently Asked Questions) (coming soon) and take a look at our articles and videos on litigation topics. To find an overview of the litigation services offered by Baker Law Group, click here. If you have any questions or would like to schedule a consultation with one of our attorneys, please don’t hesitate to call us at 303.862.4564.
Litigation refers to the process of resolving disputes through the public court system, by beginning with the filing of what is referred to as a complaint. In federal courts, litigation is governed by a number of federal rules, which are largely governed by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. In state courts, litigation is governed by a number of state rules. In Colorado these rules include the Colorado Rules of Civil Procedure, and the Colorado Rules of Evidence, as well as a few others. While most disputes are never filed in the public court system, some are. However, most cases filed with the court are not heard by a judge or jury, but are instead settled between the parties via settlement agreements. Litigation is a broad field, with a vast array of topics including torts, civil issues, business disputes, fiduciary matters, probate, and many more.
There are at least two parties to a litigation matter: a plaintiff and a defendant. A plaintiff commences a civil action by filing a complaint with the clerk of the court against a defendant. Personal jurisdiction is then determined over the defendant, and then the parties meet and confer to identify issues, discuss the possibility of settlement, and prepare a plan for discovery and disclosure. A defendant may file motions, some of which are required to be filed in the first responsive pleading, while others may be filed later. After a defendant files an answer, the plaintiff may or may not file a reply. After this, parties disclose documents through the discovery process. Either party may file additional motions at this point. At least one (often several) pre-trial conference with the parties and judge are held. After the final pre-trial conference, the claim(s) will be heard in court (either by a judge or jury) and a judgment will be rendered. Once a verdict is made, appeal may be taken by either party. Finally, once a final judgement has been reached, the judgement will be enforced.
· Pleading-Document submitted to court in which parties submit their claims and defenses.
· Complaint-Pleading that starts a case. This document must contain language setting forth the jurisdictional basis, the plaintiff’s cause of action, and a demand for judicial relief.
· Answer –Defendant’s first pleading, which addresses the dispute on the merits and presents any defenses and counterclaims. Typically denies most of plaintiff’s allegations and claims complete defense to allegations that are not denied.
· Plaintiff-Party who initiates the lawsuit against the defendant.
· Defendant- An individual, company or institution whom the lawsuit is initiated against in court.
· Cause of Action-A set of predefined factual elements that allow for a legal remedy. (commonlaw), or administrative regulation. Please see below for some example causes of action that our firm can assist you with.
· Common Law –Body of law derived from judicial decisions. The defining characteristic of “common law” is that it arises as precedent.
· Discovery –Parties use the pre-trial discovery process to gather information in preparation for the trial. Parties may obtain discovery regarding any non-privileged (doctor-patient, attorney-client, etc.) matter that is relevant to any party’s claim or defense. For more on federal discovery see Rules 26-37; for more on discovery in Colorado see Rules 26-37.
· Motion –request to a court for a desired ruling or order. Motions are explained in further detail in the federal and state rules of civil procedure.
· Appeal – A challenge to a previous legal determination.
· Brief –Written arguments submitted to the court.
Litigation may be necessary when an individual is faced with a breach of contract, fraud, misrepresentation, nondisclosure, concealment, fiduciary breach of duties, trust and probate issues, and many other causes of action. While exploring your options, keep in mind that filing a lawsuit and incurring substantial legal fees is NOT always the best decision and alternatives to litigation should be explored.
Breach of Contract
Occurs when a party who has entered a binding contract fails to fulfill any of its contractual obligations. A breach can occur when a party does not perform on time, does not perform in accordance with the terms of the agreement, or does not perform at all. A breach can be either “material” or “immaterial.” This designation will affect the determination of the remedy. The main remedies for breach are payment of damages, specific performance, cancellation and restitution. In Colorado, four elements are required to establish breach ofcontract: (1) the existence of a contract; (2) performance by the plaintiff or some justification for nonperformance; (3) failure to perform the contract or some justification for nonperformance; and, (4) resulting damages to the plaintiff.
Fraud, Misrepresentation, Nondisclosure, and Concealment
For a plaintiff to recover on a claim of deceit based on false representation, they must prove that: (1) the defendant made a false representation of fact; (2) the fact was material; (3) the defendant either knew the representation was false or was aware that they did not know whether the representation was true or false; (4) the defendant made the representation with the intent that the plaintiff would rely on the representation; (5) the plaintiff relied on the representation; (6) the plaintiff’s reliance was justified; and (7) this reliance caused (injuries) (damages) (losses) to the plaintiff. A similar series of elements must also be proven for a plaintiff to succeed on a nondisclosure or concealment claim.
A fact ismaterial if a reasonable person under the circumstance would regard it as important in deciding what to do. The defendant has a duty to disclose material facts if they know about them AND if they have a special relationship with the plaintiff, or if the defendant intentionally created a false impression of the facts, or if the defendant knows that the plaintiff is not in a position to discover the facts for themselves. Defendant must also correct previous statements of material facts if they later discover the statements to be false. The defendant concealed a fact that they knew if, by conduct, or by written or oral words, created a false impression of the actual fact in the mind of the plaintiff by covering up the truth or by preventing plaintiff from discovering the actual fact for themselves.
Interference with Prospective Advantage
If you were working a business deal with someone but had not yet created and signed a contract and a third party causes the deal to fall through, you may have a claim for interference with prospective advantage. This “business tort” allows parties to recover their business losses when a third party ruins a future business deal that is not yet written in a mutually executed contract. In Colorado, tortious interference with a prospective business relation requires ashowing of intentional and improper interference preventing formation of a contract. When determining liability, factors to consider are: (the nature of the actor’s conduct; (2) the actor’s motive; (3) the interests of the other with which the actor’s conduct interferes; (4) the interests sought to be advanced by the actor; (5) the social interest in protecting the freedom of action of the actor and the contractual interests of the other; (6) the remoteness of the actor’s conduct to the interference; and (7) the relations between the parties.
Fiduciary Breach of Duties (including trustees, corporate officers, guardians and conservators, agents holding a power of attorney, personal representatives and executors)
A fiduciary is a person with an appointed duty to act primarily for the benefit of another person in matter related to that which gives rise to the duty. Common examples of fiduciaries include corporate officers, trustees, and conservators. A fiduciary breach of duty occurs when a fiduciary fails to fulfill their duties. A breach can be based on willful or negligent conduct. The fiduciary is responsible to exercise the care and skill that an ordinarily prudent person would use to protect and preserve their own interests or property. Failure to exercise this level of care can constitute a breach.
Trust litigation occurs when disputes arise during the organized distribution of property from one generation to another (heirs and beneficiaries). Common issues that give rise to a need for trust litigation include when the person who created the trust lacked the legal authority to do so, when the creator of the trust was coerced, when there is a breach of fiduciary responsibilities, and when documents are forged. For more information on trusts, see our trustee and fiduciary services resource page (coming soon).
Probate law determines how an individual’s possessions are distributed after death. Probate courts are also responsible to facilitate the distribution of an estate even if the deceased had a will. Typically, this is a routine process, but when legal contests arise probate litigation becomes necessary. For example, a probate litigation lawsuit may be filed when there is a dispute over a will. Additionally, probate litigation may be necessary when a person has become incapacitated, and there is a dispute over who should become their guardian/conservator. Probate litigation may also be necessary when a fiduciary or power or attorney is suspected of misconduct. For more information on trusts, see our trustee and fiduciary services resource page (coming soon).
Dolton v. Capitol Federal Sav. & Loan Ass’n, 642 P.2d 21, 23 (Colo. App.1981).
Amoco Oil Co. v. Ervin, 908 P.2d 493, 500 (Colo.1995).