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For benchmark surveys, an example of how we might define “litigation”?

A recently published study of litigation had to set some parameters for the general counsel who responded to a survey. What activities should they count as “litigation” and which should they excluded?

“Respondents were instructed not to consider internal investigations or the broader universe of administrative or regulatory proceedings that might precede or replace the filing of a complaint.” By my understanding, therefore, EEOC investigations and the equivalent state inquiries would be excluded as would environmental or OSHA fact-finding proceedings. Nor would this definition count workers’ compensation determinations. Rate-change requests by utilities would not be included. SEC investigations or efforts by state counterparts would fall outside this scope of litigation. I suppose arbitrations and mediations, whether with employees or customers, might also be deemed non-litigation.

The definition is not airtight but I commend the University of Denver’s Institute for the Advancement of the American Legal System (IAALS) not only for its research but for its careful effort to define this key term.

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