Texas Trial Lawyers
The Civil Litigation Process in Texas
What to Expect if You Are Sued or Sue Somebody Else
These days, more and more people and businesses are facing civil lawsuits over real estate and business transactions. What should you do if served with legal papers? What should you expect if you sue somebody? The answers may seem obvious but many people do not understand the process and failure to take the proper course of action can result in disaster.
Generally, when a lawsuit is filed, a defendant is not required to take any action unless properly served with a citation. If you are sued and served with a citation (notice of the lawsuit), there are two things you should do immediately.
Firstly, you should consult with an attorney that practices in the same area that is the subject of the suit. If it civil litigation case, call a lawyer that handles general civil cases. If it is a real estate litigation case, call a board certified real estate lawyer and if it is a personal injury case, call a board certified personal injury trial lawyer. Calling a lawyer immediately is important to make sure that your answer is filed in time and any proper defenses are raised. The standard time for filing an answer in district or county court is the Monday following twenty days after service of the citation. However, there can be requests that alter this deadline such as applications for temporary restraining orders and injunctions. So, you should never count on assuming that you have plenty of time to hire the lawyer. Also, often there are counter-claims that can be filed and the necessity to seek court orders to preserve evidence helpful to your case.
Secondly, you should make sure that the claims against you are not covered by an insurance policy that you hold. If you have coverage, it is critical that you notify the insurance company so that they can provide you with a lawyer and cover any losses. If you don't act in a timely manner in notifying your insurance company of a claim, you risk losing coverage. If you turn the claim over to your insurance company and they send you a "reservation of rights" letter informing you that they will provide a defense but not necessarily cover you if there is a judgment, you should contact an attorney immediately to discuss your rights to hire your own lawyer at the expense of the insurance company.
Many people believe that they can buy time by filing their own answer to the lawsuit rather than expending the money to hire a lawyer. Often, such people will find a form general denial or use an answer from somebody else's cases. This can be a tragic error because failure to raise certain issues in your answer properly can result in a waiver and damage your case.
Once you have hired an attorney and a proper answer has been filed, most cases proceed in a relatively similar fashion. The next phase of the litigation is known as "discovery." During this time, the parties seek to learn as much as possible about the other side's claims, evidence and witnesses. They will exchange requests for interrogatories, production and admissions. Interrogatories are written questions asking about your claims and defenses and the names of your witnesses. Requests for production seek copies of pertinent documents and other items. Requests for admissions ask a party to admit or deny a certain proposition or statement. They can be useful to narrow the scope of the issues but they can also devastate you case if not answered in time. For instance, if you fail to respond to requests for admissions, they are deemed admitted and can thus admit away your claim or defense.
During the discovery period, depositions will likely be taken. A deposition involves a party or witness being questioned under oath with a court reporter present and taking down the testimony in shorthand. The testimony can be used at trial and has the same effect as somebody testifying before the judge or jury.
After the parties have completed most or all of their discovery, they may move for summary judgment. This is a request that the court find for them as a matter of law on either claims or defenses.
At some point before trial, the parties may participate in mediation. Mediation is a settlement conference which is facilitated by an experienced mediator. Mediators are often former judges or attorneys that have special training. The mediation process usually starts with both sides and their lawyers together in one room with the mediator. They make opening statements and present an overview of their case. They then separate and spend the rest of the session in different rooms. The mediator goes from room to room trying to help reach a settlement. If the case settles, the lawsuit is over. If no settlement is reached, the case proceeds to trial and nothing said at the mediation can be used against any party.
The first part of a jury trial is Voir Dire - commonly known as jury selection. During this phase of the trial, potential jurors are brought to the courtroom and are questioned by the judge and the lawyers for both sides. Each side can "strike" (dismiss) potential jurors. There are two types of strikes, peremptory and strikes for cause. A peremptory strike is one in which the lawyer excludes the potential juror for any reason - with no explanation required. Each side gets a certain, limited number of peremptory strikes depending on the court (county or district) and is free to exercise them at will unless they are attempting to dismiss a potential juror for a prohibited reason such as the person's race. The other type of strike is a strike for cause. With this type of strike, the lawyer asks the judge to dismiss a potential juror because of bias or prejudice against their case or client. If the judge agrees, that person is excused. There is no limit to the number of jurors that can be excused or struck for cause. Once all the peremptory strikes and strikes for cause have been exercised, the judge calls the remaining potential jurors in order to take their place in the jury box. In addition to any alternates, twelve are selected in district court and six in county court.
Next comes opening statements. Opening statements are the opportunity for the lawyers on each side to tell the jury what they expect the evidence will show during the trial and what the intend to prove. Technically, the lawyers are not supposed to give an argument during this part of the trial.
After opening statements, the evidence part of the trial begins. The plaintiff goes first and calls the witnesses needed to prove their case. The lawyer that calls the witness conducts what is called direct examination. The other party or parties' lawyer then gets to question the witness in what is called cross-examination. During both direct and cross-examination, the lawyers may introduce exhibits and ask the witness questions about them. Many times, the exhibits are admitted before the trial. After the plaintiff is done putting on evidence, the lawyer will "rest" their case and the defendant or defendants will put on their evidence.
When all the evidence has been presented to the jury, the judge will read the charge (jury instructions) to the jury. The lawyers for both sides will then be permitted to make closing arguments to the jury. The jury will then retire to the jury room to begin their deliberations. When a verdict is reached, it is announced in open court.
While the litigation process can include many other motions, hearings and appeals, this is a basic overview of some of the procedures that are found in most cases.