It usually happens at a point in the case when a client is frustrated with a defendant’s unreasonably low offer. The client tells me that “we’ll just have to take them to court.” Enthusiastic as I may share in the sentiment, my response is usually something along the lines of explaining to a client that we already have ‘taken them to court.’ Of course, anyone not involved in the daily practice of law could be excused from missing this since so little of the substance of a case (prior to trial) actually occurs in court (especially these days). And clients are rarely present during the times we do find ourselves in court.
So how do we think about the notion of being ‘in court?’ A case can be resolved with litigation, which is the formal process of taking legal action. However, if the parties are unable to come to a resolution, a lawsuit is filed. Once lawsuit is filed the court has jurisdiction over the parties, so the defendant has been ‘taken to court’. Of course, the filing of a lawsuit is merely the formal beginning of what can be a long and potentially complex process. Because a trial is where all of the action happens, clients often perceive trial as a party being taken to court, but it is better thought of as a culmination of the litigation process if the parties have not been able to resolve the case while in court at any time leading up to the trial.