A Civil Action Described

The following gives a brief description of the steps that occur in a civil lawsuit.

ABSTRACT

Civil litigation normally involves the resolution of claims that have arisen between individuals or entities for injuries or losses that one of the parties has suffered by the individual physically, mentally or emotionally, to a persons property, real or personal, that arises under the Texas Constitution and legislatively enacted codified civil codes and statutes as well as civil common law.

Important Rules and Deadlines

In a civil lawsuit rules and deadlines are important. Also, all documents filed with the court must be in the English language. Pro se litigants must follow the same rules as parties who are represented by attorneys and are bound by all the Rules of Professional Conduct that attorneys are bound by.

Applicable Rules

The Texas Rules of Civil Procedure govern all civil cases in Texas state courts. In general, the Texas Rules of Civil Procedure set forth rules regarding pleadings, discovery, and deadlines. In civil cases filed in Dallas County, these rules are supplemented by the Dallas County Civil Court Rules. For more information, consult the "Resources and References" list described below.1

Statute of Limitations

A lawsuit must be filed within the Statute of Limitations period applicable to the particular cause(s) of action. Generally, the Statute of Limitations is two years or four years from the accrual of the cause of action. If the lawsuit is filed after the Statute of Limitations has passed, it is forever barred from being pursued. Depending on the facts at issue, a party may be able to assert an exception to the Statute of Limitations, such as the "discovery rule" or fraudulent concealment. Please consult Chapter 16 of the Texas Civil Practice and Remedies Code regarding the Statute of Limitations.

Commencing a Civil Lawsuit

A civil lawsuit begins with the filing of a Petition (or a Complaint in Federal Court) by the injured person or entity, the Plaintiff(s), against the person or entity which is alleged to have caused the injury, the Defendant(s). In the Petition, the Plaintiff(s) sets out the basic facts that give rise to the cause of action against the Defendant(s), the legal basis for such causes of action, as well as a description of the injuries or damages that have been suffered and the relief that is sought.

When the suit is filed, the Clerk randomly assigns the case to one of the civil courts.2 The Clerk also prepares the Citation which is to be served upon the Defendant with a copy of the Petition to explain to the Defendant that he or she has been sued and must file an answer. Service of the Citation and Petition on a Defendant is normally handled by either personal service by a County Constable or a private process server, or by registered or certified mail.3 If for some reason, however, service cannot be completed through normal channels, then a Judge can order that service be accomplished in other manners, such as through publication of a notice in a newspaper or by placing a copy of the order for alternative service, the citation and the petition on the door of Defendant's last known place of abode.

Injunctive Relief and Motions for Contempt

One kind of relief that may be sought in civil courts is injunctive relief; it may be the only relief sought or accompany other requests. An injunction is a court order, requiring a party to take an action or stop taking an action. There are state statutes that authorize injunctions in certain circumstances and involving certain parties. If a statute does not apply, parties may obtain injunctions if they can satisfy four requirements. The pleading requirements for this kind of relief can be complicated, and a party may fail to obtain this relief based on failure to meet the pleading requirements. There are three types of injunctions: 1) a temporary restraining order; 2) a temporary injunction; and 3) a permanent injunction. A temporary restraining order is an emergency order that a court may issue the day that a lawsuit is filed and without notice to the other party. Because of the emergency nature of this order, the order usually only lasts fourteen days when the court may hold a temporary injunction hearing after notice to all parties. Temporary injunction hearings may include evidence and testimony by both parties, and if issued, may last until the final judgment or permanent injunction is entered in the case. An injunction issued against a party should be taken seriously, as violation of an injunction may result in the court holding the party in contempt of court. Ordinarily, a contempt judgment is entered only after a motion by a party, notice, and hearing. In the contempt judgment, a court may fine a person for violation of the court order or jail them.

After the Defendant is served, he or she must file an answer to the Petition, generally denying the allegations being made by the Plaintiff and setting forth any affirmative defenses that he or she might have to the allegations being made by the Plaintiff.

Computation of Deadlines

When computing deadlines, the date of service is not included. Begin counting the deadline on the day following receipt and the due date is included in the calculation, unless the due date falls on a Saturday, Sunday or legal holiday, in which case the due date is the next business day after the weekend or holiday. All deadlines are calculated based on Calendar days, which include weekends up to the final date to answer.

Answer Deadline

A person who has been sued, the Defendant, must answer the lawsuit by filing an Original Answer by 10:00 a.m. on the next Monday, following the expiration of 20 calendar days from the date the Plaintiff's Original Petition was served. A person sued in a Justice of the Peace Court must file an Original Answer by 10:00 a.m. on the next Monday, following the expiration of 10 calendar days from the date the Petition was served..

Verified Pleadings

Some pleadings must be verified before being filed in the lawsuit. Verification is swearing, before a notary, that the contents of the pleading or particular parts of the pleading are true and correct. Failing to verify the particular types of claims that must be verified in a pleading may result in elimination of that claim completely. Please consult Texas Rule of Civil Procedure 93.

Time Frame for a Civil Lawsuit

Once the parties have been served with the lawsuit and filed answer(s) the time clock starts for the completion of a case. The court's trial docket, including all trial settings, is handled by the court administrator. Normally, cases are set for trial within 18 months of being filed; however, this amount of time can vary greatly based on the complexity or size of the case, the availability of witnesses and other matters. If the parties are not ready when the trial date arrives, they can ask the court to continue the case and to reset it on the trial docket.

Discovery

Once the Defendant has answered the lawsuit, the parties begin to conduct discovery. During this discovery period, the parties gather the information and evidence that they will need to prove their case at trial. The length of time that the parties are given for discovery usually depends on the type and complexity of the case. There are three levels of discovery plans in Texas, Level 1 for matters not exceeding 50,000.00; Level 2 for almost all cases that do not involve multiple litigants or complex claims; Level 3 for cases involving complex matters and multiple parties. The discovery period for discovery starts at the point of serving the petition up to 30 days prior to trial. Most parties or courts issue Scheduling Orders to help keep cases on track and moving through the system.

Discovery normally consists of written discovery (written requests for information) depositions and subpoenas to compel attendance at a hearing or documents from a non-party witness or person with knowledge of facts of the case.

In written discovery, parties usually send each other written discovery requests. These requests include the following tools to obtain the information necessary to present each sides case:

  1. Rule 194 Requests for Disclosure: this tool provides basic information about the claims of the parties, a description of economic damages claimed by the parties, a list of person with knowledge of relevant facts, and information about expert witnesses.

  2. Requests for Admissions: this requests the opposing party to admit or deny certain facts, verify the authenticity of certain documents and signatures therein. If the opposing party does not timely answer a Request for Admission the Admissions are deemed admitted and can be used as the same to dispositively dispose of the case. Interrogatories or questions that have to be answered, and Requests for Production that request that the other party produce certain documents and other items for inspection and/or copying.

  3. Request for Interrogatory: this request the opposing party to answer short questions limited in number depending on the level of discovery to give the other side information regarding the legal theories and facts the party relies on to support their case.

  4. Request for Production and Inspection: this request to the opposing party requests that he/she produce certain documents or tangible items for copying and inspection which are reasonably calculated to lead to discoverable information germane to the case. Later the documents are used as evidence at the trial phase.

  5. Request for Right of Re-Entry: this is a request to re-enter a dwelling often times to inventory personal property, equipment, books and records, account files and anything that would otherwise assist the Requester in producing evidence sufficient to support their case in chief at trial.

  6. Depositions, on the other hand, are used to gather sworn testimony from parties. There are two types of depositions: 1) exploratory and 2) impeachment depositions. A notice of intent to depose a party must be timely filed prior to taking a party's deposition and must indicate the time, place and methods of transcribing intended to be used to take the deposition. The notice may also include a list of the relevant subject matter the attorney intends to ask questions about or request the deponent bring certain documents to the deposition. When requesting documents be brought to a deposition, the notice must be provided well in advance of the date scheduled for the deposition to allow the deponent time to collect the documents required.

    In a deposition, the witness (or deponent) is asked questions under oath by the attorneys involved in the case, and the answers are recorded by a certified court reporter. Alternatively or additionally, depositions may be videotaped. The transcript or video from a deposition can be used at trial. If an attorney chooses to use videotaped clips of the deposition for trial the attorney must designate the clips of video they intend to use prior to the final trial date and the opposing counsel has 10 days to file objections to any designated videotaped testimony the attorney intends to use at trial.

  7. Subpoenas: are used to obtain documents from non-parties to a case or to compel the appearance of a certain non-party to appear and give testimony at a hearing or final trial. The person subpoenaed is only required to respond if they are within subpoena range in the state of Texas. The subpoena range is 150 miles from the Courthouse where the case presides. If one wishes to subpoena a non-party witness outside the subpoena range, they must do so through other courts where the person being subpoenaed is located.

Discovery Deadlines

A party to a lawsuit must respond to discovery requests within 30 days of receiving discovery requests, if they were served after the Petition was served. If the requests were mailed or faxed to the party, the deadline is 33 days from the date the discovery was mailed or faxed, i.e., the postmark date or fax date or certificate of service (see the "Adding Three Days" subsection below). The response can be mailed on the date of the deadline (see the "Service Mailbox Rule" subsection below service). If discovery was served with the Citation and Original Petition, then the person must respond within 50 days. Failure to respond to the discovery within the stated deadlines can result in objections to improper requests being waived and sanctions being imposed (see "Sanctions" subsection below).

Filing Mailbox Rule

There are two mailbox rules: one for service and one for filing. The service mailbox rule is explained below. The Filing Mail Box Rule provides that when a document is placed into a properly addressed, postage paid package and sent by first class United States Mail, it is considered received by the court on the date it is postmarked as long as it is received by the clerk within 10 days. Remember, the document must be sent through the United States Postal Service to take advantage of the mailbox rule. A document sent by any other delivery service (i.e. UPS or Federal Express) will be considered filed when it is received by the Court, not when it was sent.

Service Mailbox Rule

The Service Mail Box Rule provides that a document sent to another party by mail is considered served on the day it is mailed. The document must be sent by certified or registered mail, properly addressed to the other party at that party's last known address, mailed on or before the deadline, and include a Certificate of Service explaining how the document was sent. As with the Filing Mailbox Rule, the document must be sent through the United State Postal Service.

Adding Three Days to a Deadline

When a document is served by mail or fax and requires a response by a certain deadline, three days are added to the normal deadline, e.g., a 30-day deadline becomes 33-day deadline.

Discovery Sanctions

Failure to comply with the court's rules, procedures, and deadlines can subject the parties to sanctions. Sanctions range from a fine, to restriction of evidence, to dismissal of the case, to jail time. Sanctions can have devastating consequences

Dispositive Motions

Prior to the trial, the parties may file various motions in an attempt to dispose of the case, seek further discovery, and seek other orders and relief from the court. Some of these motions will described below. Throughout the litigation process, parties sometimes can file motions that will end the case at the trial court level. These motions are called dispositive motions and include motions to dismiss, pleas to the jurisdiction, and motions for summary judgment. Summary judgments are extremely complicated and can make or break a case. When a Motion for Summary Judgment is filed, the other party should file a response, even though a response is not required because the motion must stand or fall based on the evidence presented with it; no oral hearing or record is required for the same reason, though hearings are customary. If a hearing is held, no witnesses will be allowed to testify in person. The testimony occurs in affidavit form which is filed with the motion.

  1. Dismissal for Want of Prosecution (DWOP): The court has the power to rid its docket of cases that are not being pursued earnestly. The court may issue a Notice of Dismissal for Want of Prosecution (a "DWOP") and allow the party or parties one last opportunity to appear and show the court that due diligence has been or is being taken in relation to the lawsuit sufficient to allow it to continue on the court's docket. If the court takes action on the DWOP, it will dismiss the case without prejudice, which means that the case can be re-filed by filing a new petition unless the statute of limitations has expired.
  2. Default Judgment: If the Defendant fails to answer the lawsuit timely, after proper service, a Default Judgment may be taken against Defendant, which is just as enforceable against Defendant and Defendant's property as any other judgment. If the Defendant fails to file an answer within the time period set out in the citation, then there is a default, and the Plaintiff can ask the Court to enter a default judgment against the Defendant. In defaulting, the Defendant is deemed to have admitted all of the allegations in the Plaintiff's Petition, and the Plaintiff is only required to establish damages, if they are unliquidated.
  3. Plea to the Jurisdiction: If a defendant believes that the Court lacks subject matter, the matter is moot, is not ripe or that the Plaintiff has no standing to sue in the capacity in which they sue, the Defendant can file a plea to the jurisdiction and ask the Court to dismiss the suit entirely. If the basis is subject matter jurisdiction, then both sides can appeal, if neither side does, then the case is finally disposed of.
  4. Rule 91a Motion to Dismiss: If the defendant believes that the lawsuit filed was done so in bad faith and has no merit in law or fact and is frivolous, the Defendant can file a Rule 91a Motion to Dismiss to dispose of the case before discovery is conducted. This is not an evidentiary hearing, but rather focuses solely on the sufficiency of the Petition. These motions are rarely granted. In the event that the Defendant loses the motion, the Defendant is responsible for all attorney's fees of Plaintiff's attorney expended in defending the validity of the Petition sufficiency.
  5. No Evidence Motion for Summary Judgment: if sufficient time has passed for the Plaintiff's to due proper due diligence and discover all the facts and evidence necessary to prosecute the suit but has chosen not to conduct discovery, a no evidence motion for summary judgment may be filed by the Defendant and the court will only look to the sufficiency of the pleadings to determine whether sufficient facts have been pled to meet the legal burden of a certain legal claim asserted. The plaintiff then has the opportunity to produce controverting affidavits to support and contradict that no genuine issue of material fact is present in the case.
  6. Traditional Motion for Summary Judgment: if during discovery evidence is discovered that would lead either side to believe that they can dispose of a claim or affirmative defense based on the evidence exchanged during discovery, the party can file a Traditional Motion for Summary Judgment and attach all the relevant documents, transcripts, photos, etc. to show that there is no genuine issue of material fact in dispute and that the claim or affirmative defense must be dismissed as a matter of law. However, the other side has the opportunity to file objections to the evidence submitted as well as a Response to the Motion for Traditional Summary Judgment to controvert this point and if, in doing so, it becomes apparent there is a scintilla of evidence to support a fact issue that should be decided by a jury or trier of fact, then the motion will be denied.

Summary Judgment Deadlines

A responding party is entitled to 21 days notice prior to the decision or hearing on the matter (counting backwards from the day of the hearing, including the day of the hearing). Three days are added to this deadline, if the motion and notice are mailed or faxed. The response is due seven (7) days prior to the hearing (counting backwards from the day of the hearing, including the day of the hearing). It is considered timely filed if mailed on the due date, even if received inside of seven days prior to the hearing, per the Filing Mail Box Rule. The moving or filing party may file a reply to the response three (3) days prior to the hearing. At the hearing, the moving or filing party has the burden of proof based only upon the written evidence presented with the motion for summary judgment. If a party fails to file a response prior to the above deadline, the person cannot use evidence to argue against the motion. If a party files a response timely, he or she may argue only the counter-evidence attached to the response and the evidence attached to the motion. If the motion is sufficient to support a judgment, failing to file a response can result in dismissal of the case or a judgment in the case.

Mediation

Normally, when discovery has been substantially completed and the parties are better able to analyze the merits and value of their case, the parties agree to submit their dispute to some form of alternative dispute resolution procedure (ADR), like mediation. In fact, many courts order the parties to go to mediation. In mediation, as well as most ADR procedures, the parties try to settle the case with the assistance of a neutral third party. The mediator acts as a gobetween for the parties, trying to bring the parties closer together so that the case can settle. If the case does not settle at mediation, it proceeds to trial.

Pre-Trial Conference

Once the case is called to trial, the parties and their counsel appear in front of the Judge for a pre-trial conference. At this time, the Judge tries to get a feel from the parties as to the estimated length of the trial. The Judge will also handle other pre-trial matters at this hearing, including evidentiary matters (i.e. motions seeking to exclude certain evidence and/or testimony, motions in lemine and any outstanding daubert or dispositive motions).

Order of Go

In civil cases, either party to the lawsuit may request a trial by jury; absent such a request, the judge will decide the facts of the case as well as the law. If either party has requested a jury trial, the next step is the selection of the jury, which is called voir dire. During voir dire, each party's counsel is able to ask questions of the jury panel that has been brought in for the case. The attorneys are attempting to find out if any of the potential jurors have preexisting opinions or beliefs that might be harmful to their client's case. If a juror indicates that he or she does, in fact, have a bias or an opinion which would, in some way, prevent he or she from serving as a fair juror, then the Judge can strike that potential juror "for cause." After all of the jurors have been questioned, the parties are given time to make additional strikes (removing potential jurors) called "preemptive strikes" against jurors which they believe will not rule favorably on their case. While a party can strike a juror for almost any reason, he cannot strike a potential juror because of race or sex or religion. After all of the strikes have been made, the Judge selects the first 12 (or six if the case is in a County Court at Law) jurors to serve on the panel.

Each party is then given a chance to give an opening statement, setting out their version of the case and what they think the evidence will ultimately show. In a civil trial, the burden of proof is on the Plaintiff who must prove the case to the jury by a preponderance of the evidence. In other words, the Plaintiff must present sufficient evidence to prove that it is more likely than not that the events happened in the way that they are presented. This is in stark difference to the heavy burden that the State carries in a criminal trial-beyond a reasonable doubt. Because the Plaintiff has the burden of proof, he or she is allowed to present the case first, beginning with opening statements, then in the presentation of evidence and finally the closing argument.

After the opening statements, the Plaintiff puts on his or her case through the presentation of witnesses and the introduction of documents and exhibits. The Defendant is able to crossexamine each of the Plaintiff's witnesses during the Plaintiff's case and, after the Plaintiff rests, able to put on his own defense by calling additional witnesses and by introducing additional exhibits. After the Defendant completes his case, then the Plaintiff can put on further evidence in rebuttal to the Defendant's case.

Jury Deliberations

When both sides have finished presenting all of their evidence to the jury, the Judge then excuses the jury so that the Judge and the parties can prepare the jury charge. The jury charge contains the questions that the jury will be asked to answer along with the definitions and instructions that are necessary to help the jury answer such questions. The charge is read to the jury by the Judge after closing arguments and is to be read again by the presiding juror once the jury retires to deliberate.

As soon as the jury charge is read to the jury, each of the parties is given a chance to give a Closing Argument, summarizing the evidence that was presented and how such evidence supports the parties' claims. After the closing arguments, the jury is sent to the jury room to deliberate and to answer the questions contained in the charge.

The jury's answers to the questions are then read to the parties and, if there are no objections to the answers, then the jury is excused. The Judge then uses the answers to prepare the final judgment that will be entered in the case.

Final Judgment-Post Judgment Motions

After the judgment is entered, various post-judgment motions may be filed, the most common of which is a Motion for New Trial or a Judgment Notwithstanding the Verdict (JNOV) challenging the weight of the evidence.

Either side may appeal the judgment if the Judge committed an error in the trial court. The first level of appeal from any Dallas County Civil District Court or any Dallas County Court at Law, is to the Fifth District Court of Appeals in Dallas. Appellate filing deadlines for the original notice of appeal have to be followed strictly or else the appeals court cannot hear the appeal. Parties must follow all rules for timely filing and briefing as outlined in the Texas Rules of Appellate Procedure.

Final Judgment Deadline

A judgment becomes a Final Judgment 30 days after it is signed, unless certain post-trial motions are filed. The court loses its power to rule on the case or the judgment once this deadline passes. A party must comment on or complain about the judgment (its entry, form or substance) within this 30-day time period or the action must be taken within this 30-day time period in order to preserve the right to appeal. If certain steps are not followed during this 30-day time period, an appeal usually cannot be taken and any error by the trial court is waived. Please consult the Texas Rules of Appellate Procedure for more information regarding appeals.

1 ADD CITATION TO RESOURCES AND REFERENCES LINK

2 However, in Travis County, all civil and family suits are assigned a cause number (court) but are placed on the "centralized" docket and thus can be heard in front of several different judges depending on the workload of each court and availability of any particular judge.

3 Registered Certified Mail service can only be done in the alternative to other more appropriate methods of service such as personally serving a defendant through a licensed process server.