Litigation Attorney Job Description

Litigation attorneys, also referred as trial lawyers or litigators handle civil cases and represent plaintiffs and defendants in civil, as well as criminal cases.

Job Description

For an attorney, there are a number of things involved in handling a typical case.

A basic task of a trial lawyer is that he or she carries out a preliminary investigation to make sure that there is adequate evidence for filing a lawsuit. Conversely, in case of the defendant, he checks whether the evidence is enough to defend that individual.

This initial investigation can involve finding witnesses, taking their statements, interviewing the client, gathering requisite documents, and investigating the facts leading to the potential case. Apart from this, litigators also engage in pre-litigation and trial settlement discussions for resolution of matters, prior to a lawsuit being filed.

Litigators draft a number of pleadings and motions, for representing the plaintiff or defendant. Typically, the summons and complaints are drafted by the plaintiff’s attorney for commencing the lawsuit. The defendant’s attorney responds on his behalf, to the summons.

This task of a litigation attorney is referred to as discovery. Here, typically, the parties involved in the case, exchange information related to the case. Interrogatives, depositions, and a few other devices are used by civil litigators for getting vital information related to the lawsuit. This is important for the attorneys, for the purpose of obtaining related information, identifying issues, and formulating a case strategy.

Another important thing an attorney is responsible for is the pre-trial stage, for which the attorneys get done with the discovery, weeks prior to the trial. That is when the pre-trial meetings happen. If the case is settled at the pre-trial stage, then the attorney will not have to see the courtroom for the trial.

Even for the pre-trial, they consult and advise their clients. A litigation lawyer also comes up with a trial strategy based on facts and evidence. Drafting and arguing pre-trial motions is also done by them. Steps towards a possible lawsuit settlement are taken at this stage.

This is where a litigator’s law skills are tested. If the case is not settled in the pre-trial stage, the attorney has to work all the way, to present his arguments, as strongly as he can, in front of the judge. Cross-examination, examination, opening, and closing statements are a very important part of a trial.

Apart from this, on occasions, a litigator may settle a case at any juncture during the period of litigation. Finally, if the outcome of the trial is not satisfactory, according to him/her, he or she has the right to appeal in a higher court.

Salary of a Litigation Attorney

An individual’s experience and his position matter a lot when it comes to the salary. On an average, the nationwide pay for an attorney is around USD 120,000, starting from USD 61,000. This amount can fluctuate, depending on the region in which, he or she is practicing. For instance, average salary in northeast is USD 145,000, in southeast it is USD 120,000, and in the northwest, it is USD 110,000.

The resume of a litigation attorney can contain salary expectations attached with it. But another intangible thing which cannot be put there are the wishes of those who have been helped by him. All in all, much like many others, this job is challenging to the core.

Cause of Action

When an aggrieved party needs to file a civil or criminal lawsuit in the court of law, he or she needs to present a cause of action. On the basis of this, judicial action will be taken to provide relief to the aggrieved party or plaintiff. Under the English Law, this legal document is known as the Statement of Claim, and a Complaint in the U.S.

The legal definition is “The basis of a lawsuit that is founded on legal grounds and alleged facts which, if proved, would constitute all the ‘elements’ required by statute.”

What is it?
It is a technical law term used to explain facts that help give rise to a claim that can be put forth in a court. When someone’s legal rights are offended by any person or organization, the aggrieved party has a right to sue. With the help of this legal mechanism, a plaintiff needs to prove all the points covered that helps take the offending party to court.

It comes from either a statute passed by the parliament or from a common law. Judges, over time, form a common law based on similar cases bought to them in the court of law. These common laws help in development of cause of action required for different cases that need court action. The type will help determine which court will hear one’s case, i.e., civil or criminal court. Without a valid basis, no court will hear a dispute or pass a decision. The claim will be dismissed and the person filing the case may be asked to pay a fine.

What is the Need?
One needs a valid cause of action as there are many people who may suffer from a loss or injury. Everyone will seek legal action, and people will be suing anyone and everyone according to their whims and fancies. Thus, the legal system has developed conditions for different cases that need to follow this basis, for a matter to be taken up for a hearing.

Types
There are different types under which a plaintiff can plead or allege facts in his/her complaint. This helps in pleading an initiation of a lawsuit. The legal theory―the legal wrong suffered by the plaintiff, and the remedy―the relief asked by the plaintiff to the court, is covered by the course of action. A person may seek judicial relief on multiple causes of action depending on the different circumstances.

– Statutory causes of action
– Torts like assault, battery, invasion of privacy, negligence, slander, fraud, intentional infliction of emotional distress
– Contract-based action
– Equity suits like unjust enrichment and quantum meruit

The plaintiff needs to prove the points called the ‘elements’ mentioned in the same. This will help in winning the case by the plaintiff. If there is insufficient proof to support the element of claim, the court may dismiss the complaint for failure to state a claim, after the opposing party moves a motion. The defendant, on the other hand, needs to ‘Answer’ the complaints filed. He can admit, deny, or provide insufficient details as a response. He may even provide counterclaim answers called the ‘Counterclaim Plaintiff’ against the plaintiff, along with a course of action. Depending on the proof given by the plaintiff, and the answers received from the defendant, the court will pass a judgment.

A Complaint is the first step to initiate a legal process. If you have any doubts, you may seek professional legal advice from an attorney. Hope the above paragraphs have helped cover most of your doubts related to statement of claim.

Out of Court Settlement

An out of court settlement is a settlement that enables the plaintiff and the defendant as stated in a lawsuit filed before a court of law to discuss and end the dispute between themselves, without waiting for the outcome of the lawsuit. So, if the parties to the suit wish to settle a dispute without a trial, they can come together for such an alternative dispute resolution process.

Process

Such a settlement is a contract between the plaintiff and the defendant. It rests on the agreement between the parties involved, that the plaintiff gives up his/her/their right/ability to sue (if the right to sue has not yet been exercised), or if the plaintiff has sued (then to drop the suit) in return for a certainty that is woven into the agreement. The trial court involved would have the power to enforce the settlement agreed on between the plaintiff and the defendant. The trial court involved comes into the picture only when the settlement agreed to by the parties’ stands in breach. Then, the party in default can be sued in the court for the breach of trust. Depending on the State, the breach of contract by a party may also invite the original action prior to the settlement being restored. This helps ensure that despite going for a settlement out of court, a party if aggrieved subsequently has the right to legal recourse.

The settlement process necessitates that the agreement is put into legal force via a court order after a joint stipulation by the parties to the dispute. Such a settlement lays down a legal outline of what the parties should do or not do. It may also happen that the claim filed by an aggrieved party has been satisfied via a monetary/non-monetary consideration. In such a situation, the parties to the dispute may file a notice to the effect that the case has been withdrawn or dismissed.

These days, a significant number of cases are being resolved via such settlements. There are several incentives for this legal recourse. Trials are not only a lengthy affair, but are also expensive. The costs associated with a trial would obviously include charges by the attorneys for legal advice and the costs incurred with respect to getting expert witnesses to testify. Moreover, the trial process is quite stressful, and often takes a toll on the overall health of the litigants. Such settlements are also of tremendous help to the courts that are already clogged with innumerable lawsuits.

Usually, the offer for such a settlement might be made by any of the parties involved in the case. The parties together with their attorneys may meet to thrash out a settlement. The settlement may be kept private without any public disclosure, provided that the issue is not in larger public interest (class action is an example) and is a private matter. Once the settlement is arrived at, it is then placed before the court, so that an order based on the same may be handed out by the court that has jurisdiction over the same. The court is free to change or alter the aforementioned order in the interest of justice. Parties in breach of such a settlement may also be tried for a contempt of court along with the civil proceedings.

An out-of-court settlement is an agreement that is reached between the parties that are involved in a pending lawsuit without the involvement of the court. The burden on the judicial system is undoubtedly reduced, if the parties to a dispute are able to come to a legally-binding negotiated settlement.

What is an Omnibus Hearing?

The term ‘omnibus’ is a French term with Latin origins. ‘Omni’ stands for ‘all’, ‘every’ or ‘for all’. It was first used as ‘voiture omnibus’, which means ‘carriage for all’. Many are familiar with the usage of this term in relation with a publication that holds several things at once or in relation with transportation. In legal terms, an omnibus is used to describe a legislation like an omnibus bill, which has the right to pass numerous amendments to a law, or multiple laws.

Definition
An omnibus hearing is a legal proceeding that takes place before the actual trial. It is scheduled at the same time the trial date is established, usually two weeks from the date of the arraignment, unless otherwise mentioned in court. The length of the hearing can vary depending on the complexity of the case. The main purpose of the hearing is to introduce evidence and facts like testimony from police officials, and any evidence seized at the time of arrest from the defendant, to the legal representative counsel and defendants (if they wish to be present). These evidences and facts are used in the actual trial in the court. An omnibus trial is to confirm that the legal rights of the defendant are being protected. Before a hearing can be held, the arraignment (or accusation in simpler terms) must occur. In this stage, the charges are read to the defendant, and he has an opportunity to file a petition. Such a hearing is held to guarantee that both the parties acquire any critical information concerning the case held by the other. It serves as an agreement that the evidence presented is considered as admissible and can be used in the trial. It also determines whether the findings like the available evidence, the witnesses pertaining to the case are sufficient for a fair trial, and in case it is not complete, what more is needed. An omnibus trial is normally followed by a trial, a guilty plea, or a plea bargain. In an omnibus hearing, the attorneys can litigate legal issues and motions before the judge, prior to the court case.

Omnibus Bill
An omnibus bill is a single document that is accepted in a single vote by a legislature. It packages several measures together. It makes amendments to a number of other laws or even entirely new laws. We can say that, it combines diverse subjects into a single bill. Reconciliation bills, combined appropriations bills, and private relief and claims bills are all examples of the omnibus bill. The Criminal Law Amendment Act of 1968-69 is another famous example of such a bill. It was an amendment running into more than 100 pages, with 120 clauses to the Criminal code of Canada, and dealt with numerous unrelated issues, ranging from abortion, homosexuality, to drunk driving as well as gambling. It is a draft law before a legislature, which contains more than one substantive matter, or several minor matters which have been combined into one bill. The items are grouped together in an attempt to get them passed, mostly for the sake of convenience. In the 1970s, Congress began taking all the federal agency appropriations and combining them into a single bill. This is when it adopted the omnibus approach. Though this bill consists of a main or primary subject, it also contains various amendments addressing a wide range of other subjects. The unrelated and extra amendments which are not related to the main subject are often the result of deal-making and negotiation in the legislative process. These items are added to get support from certain legislators, which in turn guarantees that the bill is passed.

Are Lawsuit Settlements Deductible?

Tax deductible items are expenses that can be subtracted from adjusted gross income so as to reduce the net taxable income. These allowable deductions are useful to the defendant, who may be forced to make disbursements in favor of the plaintiff, since tax deductible items have the effect of reducing the defendant’s tax burden. Are lawsuit settlements deductible? The answer to this question hinges on the nature of the settlement and the damages awarded to the plaintiff in a court of law.

Basics

Damages or monetary compensation awarded by a court in a civil action, to the plaintiff who has been injured by the action of the defendant, may be punitive or compensatory. The latter is awarded as compensation for actual damages, that can be quantified, as well as compensation for emotional distress. Needless to say, compensation for emotional distress cannot be measured in precise terms. Punitive damages are awarded to the defendant to forestall others from committing similar actions. These are awarded as payment for deliberate actions and negligent or fraudulent behavior. Armed with the knowledge of the classification of damages, we are now in a position to explore deductible lawsuit settlements.

Verifying if Lawsuit Settlements are Deductible

Tax treatment of the payor’s expenditure is as follows:

Tax Treatment for Corporates

The payor’s expenditure may be classified as deductible, capitalized, non-deductible, or non-capitalized expenditure. While the entire amount of deductible expenses can be subtracted from gross income, capitalizing expenses results in writing-off the amount of expenditure over an extended period of time.

Payments that are made by the defendant are tax deductible, provided they can be classified as reasonable, ordinary, and necessary business expenses. Expenses, that are required for producing income, may be tax deductible or the payor may have to capitalize and deduct these costs over time. Payments for wage claims may be deductible by the payor as a business expense unless required by law to be amortized under some other tax rule. Uncontested, non-adversarial, tax-motivated settlements that have been arrived at arm’s length and in good faith will be binding for tax purpose.

At present, the payor is allowed a tax deduction for punitive damages provided these are reasonable, ordinary and necessary business expenses. Tax deduction for punitive expenses has been under fire for a long period of time. The controversy regarding punitive damages stems from the fact that, allowing a tax deduction for punitive damages undermines the role of the same in discouraging and penalizing certain undesirable actions or activities. The Obama administration has introduced as a part of its Federal Budget Proposal for the fiscal year 2010, a measure that calls for the elimination of the deductibility of punitive damage payments incurred on or after December 31, 2010. The opponents of this proposal believe that since tort abuse has escalated, the deductibility of punitive damages as ordinary and necessary business expense is one of the few relief measures available to business owners who may be required to dispense with payments that have no upper limit.

Tax Treatment for Consumers

Tax treatment for consumers may be examined by taking the example of a divorce settlement. The payor is allowed a tax deduction for spousal support, for mortgage payments, insurance premium and real estate taxes paid as alimony in lieu of the home owned by the ex-spouse. Alimony is a tax-deductible expense as far as the payor is concerned while it is taxable income for the payee. Hence, the payee prefers a structured settlement, that reduces income tax payable, as compared to a lump sum. This brings us to the issue of the taxability of lawsuit settlements for a payee.

Hopefully, the above article has answered the query to the satisfaction of the reader. Understanding tax obligations can be complex and it’s definitely not the layman’s cup of tea. Hence, it would be prudent to consult an expert on law and taxation for further details in this regard.