By Stuart Evan Glass, J.D.

Last year, over 100,000 applicants, plaintiffs, and petitioners filed lawsuits in Dallas County.   We’ll probably see more next year.  If one of these lawsuits hasn’t yet landed in your lap, one day, it probably will.

You’ll want to know what happens next.  Read on.  Most of us feel 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’s episode.

WELL IT ISN’T

A lawsuit is just like major surgery.  It hurts, it steals your time and invades your privacy; it frequently humiliates, and it costs lots of money.  The only difference:  with surgery, you at least get an anesthetic.  In a lawsuit, you’re wide-awake, and that doesn’t count sleepless nights. 

Now all we read and hear about 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 214-265-9500.

SERVICE OF CITATION

Often, you first learn someone has sued you  when a process server comes to your door to hand you 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, a licensed Constable or other officer is ringing your doorbell.  They simply deliver a copy of the lawsuit.  A process server with a Civil lawsuit will never 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.  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:  What do I do?” 

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 concerns a car wreck, call your auto insurance agent.  If the suit claims an injury on your property, call your homeowner’s insurance company.  If your policy covers the claim, 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  coverage for the claim, or contest your liability.  While this doesn’t make your lawsuit any more fun, at least someone else pays your lawyer.  If insurance does not cover the claim in the lawsuit, (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?

ANSWER

Remember, once served, you have a strict deadline to respond with a written Answer.  Under the Texas court rules, you must file your answer no later than the Monday following twenty days after service.  (A Justice Court or Small Claims case, the Monday following ten days.)  An Answer may take several forms.  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].  You must include any claim you might have against the person suing you [Counter-Claims].  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 require amendments, or supplements, so that information obtained during Discovery can work 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 you fully pay the Judgment, 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?

DISCOVERY

Discovery causes the most expense, consumes the most time, and incurs the most frustration and embarrassment in 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 do relate.  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 takes oral testimony taken under oath in front of a Court Reporter.  Most depositions take place in the conference room of one of the lawyers, and the lawyers can ask the witness anything relevant, or closely relevant, to the lawsuit.  The deposition preserves the testimony of the witness, in case of unavailability later on, or if subsequent testimony conflicts.

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.

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.

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 comes 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 rarely starts trial on its first 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.

JUDGMENT

After the trial, 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!”

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.

CONCLUSION

Being sued is no fun [except occasionally for a twisted attorney].  Knowing what to expect and having experienced legal representation can help you get through the process in one piece.

© 2004, Stuart Evan Glass