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Civil Litigation

This is a very abbreviated overview of the civil litigation
process in Texas. It is intended only as a general introduction to
common concepts and not as a guide to effectively
presenting or defending a civil claim.

A lawsuit is a civil action brought in a court of law in which a “plaintiff,” a party who claims to have incurred loss as a result of a defendant’s actions — which could be for personal injury, breach of contract, or some other type of complaint — demands a legal or equitable remedy, usually meaning either a money judgment for damages or an order from the court for specific performance. The defendant is required to respond to the plaintiff’s complaint.

In some cases, the Plaintiff may be called the “claimant” and the Defendant may be called the “Respondent.”

If the plaintiff is successful, then a judgment will be given in the plaintiff’s favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. Additionally, under the Uniform Declaratory Judgments Act, (which applies in Texas), a declaratory judgment may be issued to settle certain disputes and prevent future ones involving the same issues and parties.

The process of conducting a lawsuit is sometimes called “litigation.”

Rules of civil procedure govern the conduct of a lawsuit in the common law adversarial system of dispute resolution used in Texas. The Texas Rules of Civil Procedure govern civil litigation in Texas state courts. Sometimes, these procedural rules are additionally modified by separate statutory laws, case law, and constitutional provisions that define the rights of the parties to a lawsuit, though the rules will generally reflect this legal context on their face. Often, the Texas Civil Practice and Remedies Code will set out the type, kind and variety of damages and relief a plaintiff may recover, and it sets out a variety of defenses in specific types of cases. Also, many other Codes in Texas set out a variety of deadlines and limitations that apply to specific civil cases.

While the details of procedure differ greatly from jurisdiction to jurisdiction, and often from court to court within the same jurisdiction, the Rules of Civil Procedure govern the basic track of a lawsuit.

Though the majority of civil cases are resolved prior to trial through mediation or by direct settlement negotiations between the parties’ attorneys, they can be very complicated to litigate. Often, discovery must be conducted before the parties are able to meaningfully start to negotiate a settlement of their dispute.

Lawsuits become additionally complicated as more parties become involved. Within a single civil action, there can be any number of claims and defenses (based on different laws and common law rights or defenses) between multiple plaintiffs or defendants, each of whom can bring any number of cross-claims and counterclaims against each other, and even bring additional parties into the suit on either side after it progresses. However, courts typically have some power to sever claims and parties into separate actions if it is more efficient to do so, such as if there is not a sufficient overlap of factual issues between the various claims.

A lawsuit begins when a complaint is filed with the court. This complaint will state that one or more plaintiffs is seeking money damages or equitable relief from one or more stated defendants, and will identify the legal and factual bases for doing so. It is important that the plaintiff selects the proper venue with the proper jurisdiction to bring his lawsuit.

Once the original petition or complaint is filed, the plaintiff will request the Clerk of the Court to issue a Citation. The Citation, along with a copy of the petition, is served on the defendant by either a private process server or a law enforcement officer. Sometimes, service of the Citation and the petition is effected by the Clerk by mail, or by alternative means, such as by publishing notice in a newspaper or posting the Citation on the defendant’s door. Service must be accomplished in the manner governed by the Rules of Civil Procedure and calculated to give actual notice of the lawsuit to the defendant.

The Citation notifies the defendants that they are being sued and that they have a specific time limit to file a response. By providing a copy of the complaint, the service also notifies the defendants of the nature of the claims. Once the defendants are served with the summons and complaint, they are subject to a time limit to file an answer stating their defenses to the plaintiff’s claims, including any challenges to the court’s jurisdiction, and any counterclaims they wish to assert against the plaintiff.

If the defendant chooses to file an answer within the time permitted, the answer must address each of the plaintiffs’ allegations by admitting the allegation, denying it, or pleading a lack of sufficient information to admit or deny the allegation. Some jurisdictions, like Texas, authorize general denials of each and every allegation in the complaint. At the time she or he files an answer, the defendant will also raise all “affirmative” defenses she or he may have. She or he may also assert any counterclaims for damages or equitable relief against the plaintiff, and in the case of “compulsory counterclaims,” must do so or risk having the counterclaim barred in any subsequent proceeding. The defendant may also file a “third party complaint” in which she or he seeks to join another party or parties in the action if she or he believes those parties may be liable for some or all of the plaintiff’s damages. Filing an answer “joins the cause” and moves the case into the pre-trial phase.

Discovery Procedures in Civil Cases in Texas

Discovery is a process by which the parties to lawsuits explore the facts, circumstances, evidence, and arguments of each other’s case. The purpose of discovery is to provide each side with full knowledge of the facts and documents prior to trial. Contrary to popular belief, the courts frown on “trial by surprise.” Rather, the courts expect each side to come into court knowing as much as possible about the opposing side’s evidence and arguments. As the Texas Supreme Court has stated, cases should be decided on the basis of what the facts reveal, not on the basis of what is concealed. As a result, your answers to discovery sent to you must be complete and truthful.

During discovery your attorney can evaluate the effectiveness of opposing witnesses and counsel, and prepare a strategy. Of course, while your attorney is evaluating the other side’s positions, they are evaluating yours. Information received during discovery can also help you and your attorney determine whether settlement is a viable option, and it can help your lawyer determine what type of settlement is satisfactory if it proves to be the best option.

It is therefore essential that you proceed with discovery in an effective manner. Typically, your lawyer will help you prepare your discovery responses, but will need your assistance in gathering the necessary information and in preparing the responses. Your participation in the discovery process will be vitally important to the success of your case.

The rules that govern lawsuits provide a number of different discovery techniques. For instance, in Texas, there are requests for disclosure, oral depositions, written interrogatories, requests for production, and requests for admission. Some of these devices will require written answers from you, some will require that you provide the other side with documents or other tangible things, and some require that you and other witnesses give sworn testimony before a court reporter. All of these discovery devices require that the answers be truthful and complete, and you will be required to swear to or verify all of the answers that you give. Discovery must be answered unless it is not within the proper scope of discovery or involves a matter that is privileged from discovery, such as communications protected by the attorney-client privilege or trade secret information. Below is a brief explanation of the discovery devices and a discussion of the parties’ duty to cooperate during discovery.

Parties routinely send “requests for disclosure.” Requests for disclosure require the receiving party to provide certain information without objection. These items include: the correct names of the parties to the lawsuit; the name, address, and telephone number of any potential parties to the suit; the legal theories and general factual bases of the responding party”s claims or defenses; the amount and method of calculating damages; the name, address, and telephone number of persons with knowledge of relevant facts and a brief statement of the person’s connection with the case; information on experts expected to testify at trial; all discoverable indemnity, insurance, or settlement agreements; statements of witnesses; and medical information.

A “deposition on oral examination” is similar to giving testimony at a trial, although a deposition does not occur in a courtroom. The person whose deposition is taken, called the deponent, is placed under oath and questioned by the attorney for the party who scheduled the deposition. Any attorneys representing other parties to the case are also entitled to be present and ask questions. Of course, the attorney representing the deponent is also there to protect that person’s interests and to object to any improper questions or tactics. There is no judge, but a court reporter will be present to record the testimony. The deposition may also be videotaped, as well as being recorded stenographically, if the party scheduling the deposition requests.

“Interrogatories” are written questions sent by one party to another. As the case develops, we will probably receive and send “requests for admissions.” Requests for admissions ask the receiving party to admit certain facts, and take them out of controversy.

You will be required to verify the answers to the interrogatories by signing them under oath, with your signature notarized.

“Requests for production” ask that a party produce certain documents or other tangible items relevant to the lawsuit so that the other side can inspect or copy them. Sometimes, document production and review can be a time-consuming process. So, when you are served with discovery such as this, it is important that your attorney get as much of the requested material as possible from you, as soon as possible, so that he will have sufficient time to review it before the deadline.

Lawyers have a duty to cooperate in the discovery process; we can be severely penalized by the court if we do not respond honestly and promptly to reasonable discovery requests or if we abuse the discovery process in any way. In recent years, many judges have lost patience with uncooperative lawyers and clients, and have taken an active approach towards imposing sanctions. Sanctions for discovery abuse can be imposed on both the lawyer and the client, and possible sanctions include monetary fines and, for extremely abusive behavior, pleadings can be stricken from the case and claims can be dismissed or a default judgment can be rendered. You can actually lose your case, regardless of the merits, if the judge determines that we are not conducting or participating in discovery in good faith. We must be sure that we cooperate during discovery, and provide full and complete responses to any discovery we receive. However, let me make clear that this duty to cooperate is not a duty to volunteer. While we will certainly give honest answers to reasonable discovery requests, we will not provide any information that is not clearly requested. Let me also assure you that we will do our best to protect privileged information.

Of course, your lawyer can also demand reasonable behavior during discovery from the opposing party and their counsel. Your lawyer should certainly react strongly to any abuse of the system that is directed at you, and may ask the court for sanctions in appropriate cases.

Trial and Resolution of Your Case

At trial, each side presents witnesses and enters evidence into the record, at the close of which the judge or jury renders their decision. Generally speaking, the plaintiff has the burden of proof in making his claims, which means that it is up to her or him to produce enough evidence to persuade the judge or jury that his or her claim should succeed. The defendant may have the burden of proof on other issues, however, such as affirmative defenses.

There are numerous motions that either party can file throughout the lawsuit to terminate it “prematurely”—before submission to the judge or jury for final consideration. These motions attempt to persuade the judge, through legal argument and sometimes accompanying evidence, that because there is no reasonable way that the other party could legally win, there is no sense in continuing with the trial. Motions for summary judgment, for example, can usually be brought before the actual presentation of the case. Motions can also be brought after the close of a trial to undo a jury verdict that is contrary to law or against the weight of the evidence, or to convince the judge that she or he should change his decision or grant a new trial.

Also, at any time during this process from the filing of the complaint to the final judgment, the plaintiff may withdraw his or her complaint and end the whole matter, or the defendant may agree to a settlement. If the case settles, the parties might choose to enter into a stipulated judgment with the settlement agreement attached, or the plaintiff may simply file a voluntary dismissal, so that the settlement agreement is never entered into the court record.

After a final decision has been made, either party or both may appeal from the judgment if they believe there had been a procedural error made by the trial court. Even the prevailing party may appeal, if, for example, they wanted a larger award than was granted. The appellate court in Texas is, first, the Court of Appeals. The Court of Appeals is an “intermediate appellate court” and after reviewing the result in the trial court may affirm the judgment, reverse, or vacate and remand, which involves sending the lawsuit back to the lower trial court to address an unresolved issue, or possibly for a whole new trial. Some lawsuits go up and down the appeals ladder repeatedly before finally being resolved.

After the Court of Appeals decision, a party may petition the Texas Supreme Court to hear a further appeal. However, the Texas Supreme Court has the discretion to decide which appeals it will hear, and hears many fewer cases than are petitioned.

When the lawsuit has finally been resolved, or the allotted time to file an appeal has expired, the matter is referred to in the law as “res judicata.” In other words, that dispute, between those parties, is fully and finally resolved and generally a court in a later action will not, and cannot, change the prior result. The plaintiff is precluded from bringing an action resulting from the same claim again. In addition, other parties who later attempt to re-litigate a matter already ruled upon from a previous lawsuit will be estopped from doing so.

Enforcement of a Judgment

This section is very general, as the manner and means of enforcing a judgment – as well as avoiding enforcement of a judgment – is very extensive and often complex.

If the judgment is for the plaintiff, then the defendant must comply under penalty of law with the judgment, which will usually be a monetary award. If the defendant fails to pay, the court has various powers to seize any of the defendant’s assets located within its jurisdiction, such as:

  • Writ of execution, where a constable or sheriff visits the defendant’s home or place of business and seizes non-exempt property to sell to satisfy the judgment.
  • Bank account garnishment, where the plaintiff applies for a writ of garnishment compelling the bank or other financial institution to pay to plaintiff the funds the institution holds for the defendant.
  • Liens, which are created by the judgment and the filing of the Abstract of Judgment and its appropriate filing.
  • Wage garnishment – does not exist in Texas.

Conclusion

This short overview of the civil litigation process should give you an idea of how much effort is involved in even “small” civil cases. The rules are many and sometimes complex, and very often the stakes are high. Going to court to resolve a claim should be a last resort, and the parties should be prepared to go through the processes necessary to either settle the claim or go to trial. An experienced lawyer is absolutely essential to your success in most civil cases.

Nothing in this memorandum should be construed as legal advice nor is it intended as legal advice to guide you in any specific situation. This is a very abbreviated overview of the civil litigation process in Texas. It is intended only as general introduction to common concepts and not as a guide to effectively presenting or defending a civil claim.

You should ALWAYS consult with a licensed attorney before attempting to represent yourself or make any decisions regarding any civil litigation.