I want to briefly describe the civil litigation process (as opposed to the process for a criminal proceeding). The litigation process has a certain consistency and uniformity because rules of procedure govern all the steps: for a possible decision by the judge of the lawsuit issues without a trial (a “summary” adjudication), for preparing the lawsuit for trial (conducting “discovery” and determining the precise legal and factual issues to be tried), and for the trial itself, whether the lawsuit is in federal or state court, and for any appeals of the trial verdict.
But, first, I want to repeat some information I have also said elsewhere on this website: do not under any circumstances ignore a lawsuit that is served on you or your business. I know you may believe that the lawsuit filed against you is ridiculous, frivolous, without merit, or without any basis. Nonetheless, if you ignore a lawsuit, a default judgment might be entered against you; after a judgment is entered against you, you will face an uphill battle to defend yourself, if a defense is any longer possible. Legal consultation will be necessary to determine the proper response to a lawsuit and its content.
Every lawsuit begins with the filing of an initial pleading, in Texas courts called a “Petition” and in federal courts called a “Complaint.” Other types of initial pleadings are possible. Sometimes injunctive relief is necessary to halt conduct that is doing immediate and irreparable harm, and sometimes this harmful conduct must be “enjoined” quickly! In Texas, there is a pre-lawsuit procedure for obtaining sworn testimony to investigate whether one even has a potential claim or lawsuit. The defendant has a certain limited amount of time in which to file a response to plaintiff’s initial pleading, ordinarily an “answer,” but other responsive matters may have to be asserted even before the answer or at the same time as the answer or otherwise be waived.
The litigation process for trial preparation can be long and can require considerable work. After the initial pleading that commences the lawsuit, it might be necessary to add other parties and issues, defendant may file counterclaims against the plaintiff or claims against third parties. Pre-trial preparation can involve periodic hearings and/or conferences before the judge to determine legal and factual issues, and to determine disputes that often arise in the “discovery” process, that is, in the process during which all sides in the lawsuit formally seek to find all the facts necessary for their case or their defense, by means of certain procedures defined and guided by the rules of civil procedure. These discovery procedures include depositions (recorded testimony of parties and witnesses answering questions asked by the other side, orally and under oath) and written questions or “interrogatories,” given to the opposing party to answer in writing and under oath. There are other forms and methods of pre-trial discovery procedure and process. Finally, the trial. Often, once the case is prepared or nearly-prepared for trial, or after discovery of the factual matters is nearly completed, the parties will meet in a mediation, and the case will settle or be resolved amicably by agreement. “Mediation” involves retaining a neutral third person who helps the parties discuss and reach settlement. Mediation is commonly utilized in Texas, especially in Dallas County. Trial may be followed by post-trial motions and hearings or by appeals (if the result is unfavorable), or by collection efforts, if a money judgment is obtained and not paid.
I once told a client going through this long and often difficult process of hard work and time-consuming effort that “The wheels of justice grind slowly but when they grind they grind exceedingly close.” I do not recall where I first heard that.
There are alternatives to litigation that businesses increasingly utilize called Alternative Dispute Resolution (ADR). These alternatives include mediation. Often, contracts require mediation before a lawsuit is filed, or arbitration if a dispute arises. These other procedures can reduce costs and time and can avoid courtroom litigation. Use of ADR procedures should be discussed with counsel.
Lawsuits may be filed in courts of general jurisdiction, in Dallas County called district courts and/or county courts. Sometimes when the amount of money damages is small (less than $10,000.00) it is often advantageous to file in the Justice Court, where procedural rules can be relaxed. Other specialized civil courts include probate courts and family courts. When federal laws are involved or in certain disputes between citizens of different states, the lawsuit may need to be filed in federal court. The options should be discussed with counsel.