I’m considering hiring an attorney and entering litigation… How do I get started? What should I expect along the way?
If you are considering hiring an attorney to file a lawsuit or if you are hiring an attorney to defend you against litigation, having a basic understanding of what a typical civil litigation case entails can help you to understand what you are getting yourself into from both a financial and emotional standpoint. This article while somewhat specific, details the typical process for litigation in the state of Texas
1) Initial or Intake Meeting–You will meet with an attorney either in person or through technological means to discuss the legal aspects of the claims involved as well as how the facts involved in the case fit into the legal claims. This discussion is extremely important in that the facts of each case are extremely important to the strength of any case.
2) Attorney Fee Structure–If the attorney you are speaking with believes that you have strong claims to merit litigation, then the next discussion is typically as to attorney’s fees and whether the cost-benefit analysis of the cost of litigation will be worth it for you. There are a number of different kinds of attorney’s fees structures although the most common general form structures are as follows: (a) Hourly Billing (b) Flat Fees (c) Contingency Fees. This will typically include money paid upfront. (See my blog article entitled: Which Attorney Fee Structure is Right for Me?)
3) Representation Agreement–Once the billing structure is agreed to, the client and attorney will typically sign a representation agreement (contract) outlining the duties of each party.
4) Demand Letter and Original Petition–After the representation agreement has been signed, your attorney will make sure that he/she has all of the documents and information that he/she needs to begin drafting an Original Petition to be filed with the court. The Original Petition sets out the legal and factual claims underlying your lawsuit. The Original Petition will be filed (usually through the e-filing system) with the court in which the lawsuit is based. Many claims require or are helped by the sending of a demand letter by your attorney before filing the suit. This also allows for the possibility of entering into settlement negotiations before incurring the costs of litigation.
5) Serving the Defendants–Once the lawsuit has been filed with the court, your attorney will typically request that the court issue a citation. A citation is a one-page document that is placed in front of the Original Petition when the Original Petition is served on the Defendant(s). The Citation states to the Defendant that the Defendant has been sued and that the Defendant has a certain amount of time to file an answer in the case. The Citation also serves as proof that the Defendant has been served with the Original Petition as a sheriff or private process server fills out the bottom of the Citation and returns it to the court with notations as to when the Defendant was served.
Service is not required to be accomplished by sheriff/constable or private process server. Service may be completed through certified mail/return receipt requested, publication, and other means. The method for service will need to be analyzed in each case depending upon cost and effectiveness concerns.
6) Defendant’s Answer or Default Judgment–Once the Defendant has been served a clock begins for the Defendant to file an answer with the court or make some other appearance with the court.
The Texas Rule: Counting from the day you were served, you have 20 days plus the following Monday, at 10 a.m. to file an answer. If you do not file an answer by the deadline, the Plaintiff can ask the court to enter a default judgment against you.
If the Defendant does not file an answer within the prescribed time period, the Plaintiff can file with the court a Motion for Default Judgment. If the court signs an Order of Default Judgment either after a hearing or just based on the motion, all of the factual allegations made in the original petition are deemed true, and judgment can be made for the damages alleged.
Motion for New Trial–Even if a default judgment is signed by the court, the Defendant can still attempt to file a motion for new trial and revive the case within 30 days of the signing of the Order for Default Judgment. However, if the Defendant does not do this, the Plaintiff can then begin attempting to enforce the judgment. Enforcement is a process all on its own and I will attempt to treat it in a later blog post.
7) Option for Settlement Throughout–If the Defendant has filed an answer in the case, within the prescribed time limit or before a judge signs a default judgment, that defendant has entered into the case. If settlement negotiations are not entered into at this time, then the next step is the discovery process.
8) Discovery Process–This part of the litigation can be very expensive and very time-consuming. Discovery is the period of time in which both the Plaintiffs and Defendants have the opportunity to gather information, documents, and evidence from the other side. It is also a period of time to begin preparing for trial. Discovery includes conducting depositions, sending requests for disclosure, sending requests for production of documents and tangible things, sending requests for admissions, and sending written interrogatories to the other side. The other side will typically have 30 days to respond to these requests with answers, objections, and documents to be sent back to your attorney. The discovery process can last a long time, but the exact amount of time depends upon the specific case.
9) Alternative Dispute Resolution–ADR as it is more often referred to is a method of aiding cases to be disposed of without courtroom trials. The most common forms of ADR in Texas are Mediation and Arbitration. Mediation is a form of ADR in which the Plaintiffs and Defendants both pay a specific fee to a Mediator (typically an additional attorney) to help the two sides get closer to a settlement. This is often conducted in a location that has at least two separate rooms so that the parties can discuss their options confidentially with their own attorneys. The Mediator then spends time discussing settlement options with one side and then go to the other side to communicate settlement offers from the other side. This continues for up to a half-day (four hour period) or full-day (8 hour period) depending upon the initial preference of the parties. If the parties are unable to come to a mediated settlement agreement and the mediator believes that the parties have negotiated in good faith, then the mediator will send a letter to the court expressing that mediation failed. (See my blog article entitled: Why Should I Mediate?).
Mediation can be court ordered or voluntary and may happen at any stage of litigation, even before a lawsuit has been filed.
Arbitration is best described as paying a third party to act as a private judge to make binding decisions about a case. Arbitration is most often used in business disputes in which contracts specifically dictate that decisions about disputes will be governed by arbitration.
10) Pre-trial dispositive motions–The next major step that can be taken is pre-trial dispositive motions. The most common is a motion for summary judgment. There are a few different kinds of motions for summary judgment, but in general, an MSJ requests that the judge make a decision about the outcome of the case because there are no factual allegations in dispute only legal arguments. A judge can grant a partial summary judgment or a summary judgment that disposes of all claims in the case. In other words, the entire case might end on summary judgment or only part of it.
11) Pre-Trial Hearing–If the case moves beyond pre-trial dispositive motions, then the next major step is the pre-trial hearing. In this hearing arguments about non-dispositive motions and trial evidence are typically conducted.
12) Bench Trial or Jury Trial–Trial is very different depending on whether a jury or bench trial is requested, and preparation for trial is very different depending on which form of trial is chosen. Most cases are bench trials with only a judge as opposed to a judge and jury in a jury trial. In a bench trial the judge makes decisions regarding which factual allegations are credible as well as decisions regarding the law. In a jury trial the jury makes decisions regarding the credibility of the factual allegations of each side and the judge makes the decisions regarding the law.
Trial can last as short as 30 minutes to as long as months depending upon the number of witnesses, amount of evidence to be presented, and whether a case is a bench or jury trial.
A bench trial will end in a judgment whereas a jury trial will end in a jury verdict and judgments by the judge.
13) Post-Trial Motions— There are a number of post-trial motions that can be made that include requests to modify a jury’s verdict or to allow for changes to the judgment, however, if these motions and requests fail, the parties must choose whether to appeal.
14) Appeals— Either side can appeal any portion of the judgment or the case as a whole. There are varying time limits but 60 days is the most common.
15) Enforcement of the Judgments—Unless a Defendant decides to write a check to the Plaintiff for the full amount of the judgment, efforts must be made to enforce the judgment against the Defendant against his/her/its will. This includes recording an abstract of judgment, requesting a writ of enforcement, requesting a writ of garnishment, etc. The Enforcement process can also include post-judgment discovery regarding the Defendant’s assets. Enforcement can be a long and expensive process as well, and is not typically included in the initial scope of the work to be done by your attorney when agreeing to do litigation initially.
Partner, San Antonio Office
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