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Litigation means a resort to the Courts for resolution of a problem. Wikipedia says the conduct of a lawsuit is litigation.

It also says:

“A lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant’s actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment will be given in the plaintiff’s favor, and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.”

We could go on and on and on about the topic, but this is a blog and we should limit ourselves to the practical.

A typical lawsuit has its origins in a Road Traffic Accident. (“an RTA”). A typical RTA will involve two motor cars. The drivers may have bona fide differing opinions of the causes of the accident. One driver may have sustained more damage than the other. These circumstances may drive the lawsuit.

There are other circumstances that drive a lawsuit. Greed can drive it. Desperation can drive it. Lack of scruples (a sub-set of greed) can drive it. Ambition can drive it.

Most lawsuits are settled. The judicial system is under-resourced to adjudicate on every lawsuit filed in court.

The statistics in the Annual report of the Courts Service of Ireland do not properly reflect this. Take the figures for the High Court civil cases in 2008. There were 22,861 proceedings issued in that year. Allegedly the court made 25,734 orders and there were 4,631 settlements. These two latter figures are categorized as “Cases disposed of”.

In truth the figures for commencement of proceedings and cases disposed of are unrelated. This is so notwithstanding that most proceedings would still be in being one year after being issued. The Court Service statistics take no account of cases commenced and then discontinued. These cases, more often than not, have been settled.

The litigants, with the assistance of the legal profession, settle their cases. (At lunch-time outside the Law Library).

The implications of this, for litigants, is profound. It implies the process is a rational process (on the whole). It is rational in the way a game of chess is rational. The rules and principles are sufficiently clear and well known that the outcome can be predicted with greater or lesser certainty. It is the function of the judges to preserve the integrity of the rules and, exceptionally, expand on them.

Nevertheless, litigation is uncertain. That may mean it is uncertain to the extent of 10% or 50%. The burden of proof in civil law is on the balance of probabilities. To win, a litigant must persuade a judge that what is alleged by that litigant is, on balance, more likely than what is contended for by the opponent.

Failure to settle a case, or failure to settle until “the door of the court” may be caused by a failure to assess where the balance in the case lies, or it may be evidence of a deferment of settlement to the day of trial to maximize the compensation discount a defendant would like to get from an injured plaintiff.

Whatever the case, those causes are in principle, also assessable.