Definition
To litigate is to pursue, conduct, or defend a legal claim through the formal processes of a court of law. A party litigates when it submits a dispute to judicial resolution — filing pleadings, presenting evidence, making legal arguments, and seeking a binding judgment. The term applies to both sides: a plaintiff litigates by prosecuting a claim; a defendant litigates by contesting it.
Litigate carries an implication of active engagement with the judicial process, distinguishing it from merely filing a suit or threatening legal action. A matter is being litigated while it is pending before a court and the parties are actively contending over it.
Common Language
Modern common usage (Wiktionary): To go to law; to carry on a lawsuit. To contest in law. To dispute or fight over.
Historical common usage (Webster's 1913): To make the subject of a lawsuit; to contest in law; to prosecute or defend by pleadings, exhibition of evidence, and judicial debate in a court.
The common and legal meanings are closely aligned, but the legal meaning adds precision the ordinary usage lacks. In everyday speech, "litigate" is sometimes used loosely to mean any serious dispute or argument — including non-legal ones. In legal usage, litigating is strictly a formal judicial activity: it requires a tribunal, parties with legal standing, and proceedings conducted according to procedural rules. Informal dispute resolution, negotiation, and arbitration are not litigating in the legal sense.
Common Confusion
Litigate is sometimes used interchangeably with sue or prosecute, but the terms are not synonymous. To sue is to initiate an action; to prosecute (in the civil sense) is to carry a suit forward as the party who brought it. To litigate encompasses both prosecution and defense, and refers to the full arc of formal judicial contest, not just its initiation. In criminal law, prosecute has a separate and dominant meaning — the state pursuing criminal charges — which litigate does not share.
Why It Matters in Research
Researchers working across historical sources should be alert to litigate appearing in both active and passive constructions with subtly different implications. "To litigate a claim" means to actively contest it in court; "a litigated question" means a question that has been, or is being, contested judicially — often signaling that the point carries a body of case law behind it. This passive usage appears frequently in treatises and judicial opinions as a way of flagging that an issue is not merely theoretical but has been tested through adversarial proceedings.
The threshold question of when a party is truly litigating — as opposed to having filed a placeholder action or engaged in pre-litigation procedure — matters in several research contexts. Res judicata and collateral estoppel analysis turns in part on whether issues were actually litigated and decided. Statutes of limitations research requires distinguishing when litigation commenced from when a dispute arose. Fee-shifting provisions, litigation holds for evidence preservation, and in forma pauperis status all hinge on the meaning of active litigation.
For constitutional law researchers, the requirement that a case be ripe and not moot is inseparable from whether litigation is properly ongoing — a matter addressed directly in the Law Mind Constitutional Law Encyclopedia entry on ripeness and mootness. Tax refund litigation presents its own procedural landscape, as the forum choice between district court and the Tax Court affects the entire character of how a dispute is litigated; see the Law Mind Tax Encyclopedia entry on Refund Litigation in District Court.
Historical sources use the term consistently across centuries, so anachronism is not a major trap here. The larger hazard is that older materials use litigation to describe equity proceedings and common law actions without distinguishing between them, a distinction that matters when researching pre-merger procedure (before the Federal Rules of Civil Procedure unified law and equity in 1938).
Historical Dictionary Support
The historical legal dictionaries are in strong agreement. Black's (both editions), Burrill, and Anderson all define litigate as carrying on or contesting a suit in form of law, with no meaningful divergence. Burrill traces the term to the Latin litigare and defines it identically to the others, suggesting the word entered English legal usage with its meaning already settled.
Anderson's entry is the most expansive and introduces two useful related concepts. First, it notes that litigious can mean "subject to judicial recognition" — an older sense pointing to the quality of a claim that makes it cognizable by a court — as well as the modern pejorative sense of being overly prone to lawsuits. Second, Anderson connects litigate to lis pendens, flagging that active litigation creates a recognized legal status affecting third parties, particularly in property disputes. This connection is worth pursuing in historical research involving real property chains of title.
What the historical sources collectively understate is that litigate carries procedural significance beyond mere contest: it implies the operation of formal procedural rules governing pleading, discovery, and judgment. This dimension of the term emerged more sharply with the development of modern procedural codes, and researchers relying solely on nineteenth-century definitions may miss it.
Jurisdictional Note
The core meaning of litigate is uniform across common law jurisdictions, but what counts as litigating — and with what procedural consequences — varies. In federal practice, litigation triggers specific obligations (such as litigation holds under preservation doctrine) at a defined point. State courts may define that point differently for purposes of fee-shifting statutes or procedural tolling rules.
Encyclopedia Cross-Reference
Ripeness and Mootness in Constitutional Litigation — The Law Mind Constitutional Law Encyclopedia
Refund Litigation District Court — The Law Mind Tax Encyclopedia