Any time it becomes necessary to try a matter, you should make sure you have an experienced trial attorney. It is quite common for your normal attorney who counsels you on other matters to associate with another attorney, within or without his or her law firm, who may have trial experience with your particular type of matter. Prior to trial, there will normally be an extensive discovery process, including written discovery requests from all parties to the action, as well depositions of parties and witnesses. This process can be extensive and expensive. Be prepared for the expense before you dismiss other alternatives.
Other alternatives to trial may be mediation, which may or may not include legal counsel and unless all parties actually reach an agreement, is not binding. Once an agreement has been reached, it is usually reduced to a writing or recording so that the parties will be bound by their agreement. This is quite often an efficient, cost-effective way to resolve a dispute.
Another alternative is to submit a dispute to binding or non-binding arbitration. Unlike mediation, each of the parties, with the aid of their legal counsel, will submit the facts and rules of law as they see them to the arbitrator or board of arbitrators (usually 3). The arbitrator will then make a ruling based on the presentations made to the arbitrator in the same manner as a judge or jury would do. The parties can agree to have the arbitrator’s decision be binding and non-appealable, or they may agree not to make it binding. In other words, it could be appealed to a higher authority. While the presentations will be similar to a trial, the rules are more relaxed and the arbitrator normally has more latitude than a judge or a jury. If an appeal is desired, again the parties should be prepared for a substantial expense and there should be reasonably sufficient appealable issues which, if decided in the appellant’s favor, would change the outcome of the decision. Appeals do take a long period of time, which does not allow the parties finality until the appeal process has been exhausted.
Attorneys Practicing in Trials and Appeals: