texas civil litigation overview

8/6/2019 Texas Civil Litigation Overview

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Civil Litigation – A General Overview for Texas Civil Cases

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 avariety 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 partiesto 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,



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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 havesome 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,



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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 liablefor 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 onthe 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 beanswered 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.



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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 theperson’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, aswell 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



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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 hasexpired, 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



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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 a 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.

For more information about other legal issues:

http://www.charlesbfrye.com

http://www.texasforfeiturelaw.com

texas civil litigation overview

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