© SEGPC (2003)
Last year, over 100,000 lawsuits were filed in Dallas County. We'll probably see more next year. If one of these lawsuits hasn't yet landed in your lap, chances are, one day, it will.
You'll want to know what happens next. Read on.
Most of us are like Walter Mitty. We picture ourselves in a packed Courtroom, hushed with expectation, matching our ready wits with the balky witness, the arrogant attorney, or the tyrannical judge. We imagine a lawsuit to resemble what we see on TV, all signed, sealed, and tied together in a week.
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WELL, IT ISN'T!!!!
A lawsuit is just like major surgery. It hurts, it steals your time and invades your privacy; it's frequently humiliating, and it costs lots of money. The only difference is, with surgery, you at least get an anesthetic. In a lawsuit, you're wide-awake. And that doesn't count sleepless nights.
And now all we read and hear about is the lawsuit explosion and the litigation crisis.
This report gives you a look inside a lawsuit, sort of a peek into the kitchen. While most of what follows will apply to most lawsuits, you can get more detailed information by calling us at 214-363-7500.
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SERVICE OF CITATION
Often, the first time you know you are being sued is when someone comes to your door to serve you with the lawsuit. I have had several clients call me when a uniformed stranger comes to their door and ask whether they should answer the door. In Texas, more often than not, it is a Constable. Their only duty is to deliver a copy of the lawsuit that has been filed. A process server with a Civil lawsuit is never there to arrest you. However, many private process servers don't have to wear a uniform.
Only if properly identified as a Constable or Private Process Server should you answer the door, accept the copy of the lawsuit and sign the paper that the officer asks you to sign.
Otherwise, he or she will make three attempts, leaving a card each time. After the third attempt, you might later find the lawsuit lawfully taped to your door. You've been "Served."
Now, the big question is What do I do?"
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DO I HAVE INSURANCE?
First, READ IT! Find out what it's about.
If the lawsuit is about an automobile collision you caused, or an accidental injury at your home or your business, you might have an insurance company with a duty to defend you in the suit.
If the suit is based on a car wreck, call your insurance agent. If the suit claims that someone was injured on your property, call your homeowner's insurance company. If the claim is covered by your policy, the insurance company has a DUTY to defend you (at their expense). Sometimes your insurance company must provide your legal defense even if they question whether the event is covered, or contest your liability. While this doesn't make your lawsuit any more fun, at least someone else is paying your lawyer.
If the claim in the lawsuit is not covered by insurance, (or if your insurance company denies coverage), call a lawyer immediately. While individual people can represent themselves in court (corporations can't!), do you really want to be faced with prospect of defending yourself in front of the judge and jury?
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ANSWER
Remember, once you are served, you have a strict deadline to respond with a written Answer. Under the Texas court rules, an answer must be filed no later than the Monday following twenty days after you were served. (A Justice Court or Small Claims case, the Monday following ten days.)
There are several kinds of Answers. Most Answers in Texas simply "deny" the Plaintiff's claim [a General Denial]. However, sometimes you have to state your intent to use certain defenses [Affirmative Defenses]. A claim you might have against the person suing you frequently must be included as well [Counter-Claims]. Finally, you might need to sue some additional parties, who should share some, if not all, of the damages claimed against you.
Certain matters you might include in your Answer require you to "Verify," or sign under oath before a Notary Public.
As the lawsuit progresses, your Answer and other pleadings before the Court might need to be amended, or supplemented, so that information obtained during Discovery can be used to your advantage once you get to Trial.
What if I don't Answer?
That's easy. After the deadline, the Court can grant a Default Judgment against you, without further notice. The Default Judgment will contain everything the Plaintiff ever dreamed of.
Until the Judgment is fully paid, with interest, the Plaintiff can:
- Send a Sheriff to seize your property, auction it off, and give him the money.
- File a Judgment Lien against your real estate, so you can't sell it without paying the Judgment.
- Garnish your bank accounts. Execute on your bass boat and lake house. Require you to turn over such assets as Stocks, Royalties, and other claims you might own. [That means take 'em];
- Mess with your credit record for years.
Still sound like fun?
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DISCOVERY
Discovery is the most expensive, time-consuming, frustrating, and embarrassing part of a lawsuit. Each side gets to find out what the other side knows, or will attempt to prove at the trial. In "Discovery," the other side can inquire about everything that relates to the claims, cross-claims, and damages in the lawsuit. They can inquire about things unrelated to the lawsuit, if they might lead to discovery of other things that are related.
Much discovery is done in writing, such as Interrogatories, and Requests for Disclosures (written questions and answers), Requests for Production (exchanging copies of documents), and Requests for Admission (admitting or denying certain specific facts).
A Deposition is oral testimony taken under oath in front of a Court Reporter. Most depositions are taken in the conference room of one of the lawyers, and the lawyers are allowed to ask the witness anything relevant, or closely relevant, to the lawsuit. The deposition preserves the testimony of the witness, in case he or she is unavailable later on, or if subsequent testimony conflicts.
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MEDIATION OR SETTLEMENT
In Texas, almost every Judge will require the parties to attempt to settle their differences before trial, usually by assigning a Mediator. The Mediator will attempt to find a resolution enabling the parties to avoid a trial. Everything told to the Mediator is confidential, and the Mediator may never be called to testify as a witness.
Mediators charge a fee for their services. Most cases can be mediated in a half-day session. Rarely does Mediation require longer than one full day. The Court can punish a party that refuses to participate in Mediation.
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MOTIONS
Whenever a party refuses to cooperate with Discovery, or whenever any emergency or other unusual fact circumstance requires some unusual Court procedure, the Court will hear and decide a "Motion." These might require a party to answer Discovery, to take or refrain from taking some action (injunction), to seek permission to add a claim or another person, or to limit or exclude a witness, or allowable testimony, at trial. A party must file a Motion to request a change of attorneys, for example, or to delay a trial setting.
Motions almost always add to the delay and cost of a lawsuit, and a skilled attorney will use only those that are absolutely necessary to protect your rights at trial.
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TRIAL
The "Trial" is the actual occasion at which the Judge or Jury hears the facts of the case, and makes its decision. At Trial, each side presents his or her evidence and witnesses, and cross-examines the other side's witnesses.
Before a Jury Trial, the parties conduct "Voir Dire," in which they meet with a large group of prospective jurors, for the purpose of excluding those who might be unsympathetic, or prejudiced, against a party or claim. The actual jury is selected from those not excluded. A jury decides most fact issues, by answering specific Jury Questions about the evidence presented. Otherwise, the Judge decides all issues at trial.
In many large counties with busy Courts, including Dallas, no lawyer can predict how long it will take for a lawsuit to come to trial. In Dallas County, a case is rarely tried on its first trial setting. Because so many cases settle or need delay right before trial, Courts overbook their dockets like airline flights. In many Courts, a case scheduled for trial will have several passed trial settings BEFORE THE CASE ACTUALLY GETS TRIED. One can wait up to two years, or more, before a trial actually occurs.
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JUDGMENT
After the case is tried, and after a Jury has answered its Jury Questions, the Judge of the Court will enter Judgment for the winning party. The Judgment might include money damages, interest, attorney fees, and costs of trial. Or, it could say, "Take Nothing!"
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APPEAL
Either party, [usually the Big Loser], has 30 days from the day the Judge signs the Judgment to appeal the ruling. This deadline can be extended by a Motion for New Trial, if the circumstances of the trial warrant. Good reasons for a new trial might include jury misconduct, or new evidence previously concealed.
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CONCLUSION
Being sued is no fun [except occasionally for a twisted attorney]. But knowing what to expect and having experienced legal representation, can help you get through the process in one piece.
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