Overview of the Litigation Process
When considering whether litigation is the right step for their business, clients must consider several important factors, including the expense of litigation relative to the debt at issue, the viability of collection from the possible defendants, and the location where the lawsuit must be filed. One factor that is frequently surprising to clients is the length of time involved in the litigation process. A lawsuit can potentially last years, making consideration of such an investment of time—before initiating the lawsuit—crucial.
The timing of litigation is determined by the Texas Rules of Civil Procedure, the Texas Civil Practice and Remedies Code and any applicable local rules. Most counties and courts have their own specific set of rules and timelines that must be followed.
A lawsuit begins with the filing of an original petition, which, at a minimum, outlines the plaintiff’s claims against one or more defendants. It can take several weeks to gather the necessary information and documentation to draft the original petition. Conversely, in some instances where emergency action is necessary due to the likelihood of an immediate and irreparable injury, a lawsuit must be filed within days and may ask the court for emergency action.
Once the lawsuit has been filed, each defendant must be served with a copy of the petition by a local constable or private process server. If the defendant is easy to locate, service can often be effectuated within a few weeks of the filing of the original petition, however, if the defendant cannot be easily located, effectuating service may take several months. Your attorney may even have to make an application to the court to serve the defendant through alternative means (by mail, email, social media, etc.), a process that can take several months to complete.
After service is complete, each defendant has the opportunity to make an appearance in the lawsuit and file an answer. The Texas rules (applicable in Texas state courts) require that a defendant file his or her answer on or before 10:00 a.m. on the Monday after the expiration of twenty days after the date of service. Realistically, this can result in the defendant’s answer deadline to be almost a month after service. Answers can range from a simple “general denial” of the claims asserted to a counterclaim filed by the defendant against the plaintiff. If no answer is timely filed and no appearance is made by defendant, your attorney can request that the court award a default judgment against the defendant that may include interest and attorneys’ fees (typically, by this point, the lawsuit has been pending for at least a few months). The default judgment concludes the plaintiff’s claims in the plaintiff’s favor. After the judgment is deemed final—thirty (30) days after the judgment is awarded—the plaintiff may proceed to post-judgment collection against the defendant.
If, however, the defendant files an answer, the court will often issue a calendar of deadlines for the parties called a Docket Control Order (“DCO”) which sets a trial date, outlines all applicable court deadlines, and sets the deadlines for the parties to conduct any necessary discovery. The trial setting will often be six to nine months after the issuance of the DCO, and it is not uncommon for the initial trial setting to be delayed or rescheduled several times before getting assigned a final trial setting. Trial settings can be moved for any number of reasons, including at the request of the parties due to schedule conflicts or the need for additional time to conduct more discovery, or at the request of the court due to an overcrowded trial calendar.
Once the defendant has answered the lawsuit, the discovery portion of the lawsuit begins. Discovery allows each party to gather all necessary information and documentation from the other parties or from third parties regarding its claims and defenses. The amount of discovery allowed is sometimes dependent upon the dollar amount at issue. Discovery can consist of written requests to other parties for documentation and information and may include deposition testimony from one or more persons. The need for discovery is very case-specific. Some cases require little to no discovery whereas—in other lawsuits—discovery may take years, requiring multiple extensions of the initial trial setting. If discovery requests are made, the receiving party must timely respond, or risk being sanctioned by the court. If expert testimony is needed, a party can anticipate additional costs and time associated with locating and retaining the necessary expert and coordinating his or her review and report, as well as reviewing and rebutting any expert reports issued by the opposing party.
Most courts require that the parties attend mediation in the weeks or months leading up to trial. Mediation can be a half day or a full day (or more in rare cases), depending on the specific facts and circumstances of the lawsuit. Mediation gives the parties the opportunity to consider any settlement options of the lawsuit before embarking upon the costly and time-consuming process of preparing for a trial. Often, once the parties mediate, there will be a better understanding of not just the existing evidence related to their respective claims and defenses, but also the perspective of the other party and their goals in the lawsuit.
Upon the completion of discovery, and once the remaining court deadlines have passed, the parties must begin to prepare for trial. Parties are often surprised to learn that their trial setting is shared by other lawsuits and that there may be a preferential ranking of cases for the day. It is not uncommon for there to be last-minute changes in the trial setting depending upon how many lawsuits are set for trial on the same day, the types of lawsuits set that same day, whether those lawsuits are a jury trial or a non-jury trial, the number of days the parties anticipate needing for the lawsuit, the availability of the witnesses and the scheduling system used by each court. The end result of all of these variables is the potential that the parties prepare for trial multiple times before the trial actually happens.
Most courts will conduct a pre-trial conference a week before the scheduled start of the trial. The pre-trial conference provides the judge the opportunity to familiarize himself or herself with the lawsuit. The judge may authorize or prohibit certain witnesses and certain evidence and may make rulings to narrow the outstanding issues of a case. This pre-trial conference may be the first time the judge is deeply learning about the lawsuit, and the decisions he or she makes at the pre-trial conference may significantly alter the case to a client’s benefit or detriment.
Once the pre-trial conference has concluded, the parties are set to proceed with the trial. The trial can last anywhere from a half a day to several weeks depending on the number of parties and the claims involved. Counsel for both sides will provide a short opening and closing statement to familiarize the judge and/or jury with the forthcoming evidence and testimony. The plaintiff has the first opportunity to present its evidence and witness testimony to prove its claims and defenses, and the defendant can then cross examine that evidence. The defendant then presents its defenses and, if applicable, its counterclaim, and the plaintiff has the same chance to cross examine that evidence. The parties must follow strict rules regarding the relevance and admissibility of the content of witness testimony and any documentary exhibits as outlined in the Texas evidentiary rules. After each party with an affirmative claim has presented its witnesses and evidence, the trial is closed and the jury will deliberate and issue a verdict or, if a non-jury trial, the judge will render a judgment.
Clients are also surprised to learn that the conclusion of trial may not be the end, but rather the beginning, of the appeal and/or post-judgment collection process. Even though the trial has concluded, the case may remain open for years, either by making its way through the appeal process or because the party who obtained a monetary judgment continues to pursue the other party via the post-judgment collection process.
While litigation is often the right choice for a business, it is important to understand that the process can move slowly and take years. Clients must be prepared to devote significant time and resources to the litigation process and must maintain a level of comfortability with the strict rules governing lawsuits as well as the uncertainty of potential outcomes. Please feel free to contact our office if you have questions about whether litigation is appropriate for your business dispute.
These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed.
