Harvard Law School
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association .
Licensed to practice in California, Maryland, Washington D.C., & Georgia
To answer this question, let’s first ask another one - “What is litigation ?” The answer is not as clear cut as you might think. Back when Abe Lincoln was a lawyer, only two alternatives were available for dispute resolution. Either you arm wrestled, eye gouged, or worse, or you hired a lawyer to go to the courthouse and file a complaint against your adversary. Filing the complaint started a civil lawsuit , otherwise known as a case. If you didn’t settle it, you had a trial . After trying the civil law case, the judge or jury decided whether you won or lost. When you went through that process you were litigating, and the process itself was litigation.
Times have changed since Honest Abe traveled around Illinois trying cases in “Circuit Court”. He had to travel, because the court traveled, circling around from town to town. Although courts don’t travel anymore, in some states Trial Courts are still called Circuit Courts. In California the Trial Courts are called Superior Courts, because there were once lower and less formal courts called Justice Courts, each run by a justice of the peace . These have morphed into Small Claims Courts, not usually thought of as Trial Courts within the civil litigation process, probably because lawyers aren’t allowed.
Above the Trial Courts, where litigationstarts, are Courts of Appeal , and above the Courts of Appeal there is one Supreme Court. You usually get only one trial. Trials don’t happen in the Courts of Appealor the Supreme Court. Instead the lawyers argue about whether the Trial Court decided the case correctly. If it didn’t, the case may go back to the Trial Court for a second trial. The appeal process is part of litigation, but it’s called appellate litigation, and it’s a legal specialty.
Another change since Honest Abe’s time is the appearance of two more alternatives for dispute resolution, Mediation and Arbitration , in addition to violence and litigation. A mediation is voluntary. Instead of filing a lawsuit, you ask the other guy to mediate. Frequently lawyers aren’t involved. If the other guy agrees, the mediation is conducted in a conference room, not a courtroom, by a mediator who tries to get the two of you to settle. A mediation doesn’t look anything like a trial, and it’s confidential. Mediation is not litigation, but these days litigants frequently attempt to resolve litigation by mediation before they get to trial. In that sense mediation has become part of the litigation process.
Arbitration has been around for a long time as a way to resolve labor disputes. As a recognized alternative to litigation, it’s relatively recent. It looks a lot like litigation, but there are important differences. Most of the time arbitration doesn’t even start with a dispute. Instead it usually starts with a provision in a contract that if a dispute arises, it must be resolved by arbitration.
Arbitration can be non-binding, so that a civil lawsuit may be filed afterwards by the loser, but the whole idea is to avoid litigation. For that reason, contractual arbitration provisions usually require binding arbitration , which eliminates a civil lawsuit and appeals. On the other hand, arbitrations are conducted by arbitrators who determine the winner and loser, so an arbitrator acts like a judge to some extent. The arbitrator also conducts a hearing similar to a trial, but more informal. The hearing occurs in a conference room, rules of evidence don’t apply, and an arbitrator doesn’t have to be a lawyer. (Judges don’t have to be lawyers either, but virtually all of them are.)
Despite its similarities to a trial, an arbitration hearing is seldom referred to as a trial, and people say they are going to arbitrate, not that they are going to litigate. And an arbitration is almost never referred to as a lawsuit. Like mediation, arbitration by itself is not litigation. However, non-binding arbitration sometimes takes place in a civil lawsuit prior to trial, like mediation, but less frequently.
Now that we have an idea of what litigation is and isn’t, “What is Civil Litigation?” Civil in this context is the opposite of criminal, and civil litigation and criminal litigation are different animals. Civil litigation resolves disputes involving civil law, which comes in two main varieties, contract law and tort law.
Contract law generally deals with broken agreements and resulting monetary loss. The court first determines whether the agreement has been broken. If it has, the court then determines the amount of monetary loss and renders a judgment in that amount against the party who broke the agreement. Breaking a contract is not a crime
Tort law covers all conduct that does not involve breaching agreements. Many “torts” also have criminal law counterparts. For example, conversion is a tort. The same conduct is also theft, which is a crime. Tort law covers considerable ground. Fraud involves intentional lies that induce someone to do something resulting in monetary loss. Defamation involves lies that harm someone’s reputation or business, usually resulting in monetary loss, but not necessarily.
Personal injury is also a tort. It involves conduct that results in hurting someone physically. Damages in personal injury cases include reimbursement for medical bills and compensation for pain and suffering. Liability depends on proof of negligence, otherwise known as carelessness. Tort law also covers property rights, including title disputes, easement disputes, boundary line disputes, and simple trespass.
And then there is something called Equity, where the objective is not money, but making somebody do something or refrain from doing something, such as maintaining a nuisance. In this case a judgment comes in the form of an injunction. Therefore, equity is not a third variety of civil law, but an alternative remedy available in contract law or tort law when a money judgment can’t resolve the dispute satisfactorily.
There are two sources of civil law. The first is published decisions of judges based on long standing and commonly accepted customs and practices combined with long standing and commonly accepted ideas of right and wrong. This source traces its development back to medieval England, and the rules stated in such decisions are called common law.
The other source of civil law is the legislative enactment and publication of rules not defining criminal conduct. These rules are called civil statutes, and taken together constitute civil statutory law. You might think of civil litigation cases involving civil statutory law as contract cases.
By contrast, criminal litigation involves the prosecution and defense of alleged criminals. There is no criminal common law. All criminal law is statutory. In a criminal case the plaintiff is always the State, in the form of, “The People of the State of California”. The defendant is always innocent until proven guilty, a principle never applied in civil law or civil litigation. The usual result of criminal conviction is incarceration, either in the county jail, if the crime is minor, or state prison, if the crime is major. Incarceration never occurs in civil litigation, except for contempt of court, which is very uncommon. Restitution may be ordered in some circumstances in criminal cases, but the primary object of criminal law is deterrence and punishment, not compensation or the possession of property.
Stanley D. Prowse is a Civil Litigation Attorney practicing in the greater San Diego area.