There are few phrases that make the heart stop quite like “you are being sued.” A civil lawsuit can be a stressful experience; however, promptly obtaining competent legal counsel and understanding the basic language and process in Texas will ensure you are legally protected and proactive in asserting your rights. The first step in dealing with a lawsuit is realizing that a suit is nothing more than an allegation against a party by someone seeking to use the courts as a forum for resolution. The first priority is to begin the search for a qualified lawyer to handle the suit and preserve all legal rights available.
Many defendants will take comfort in knowing that around 95% of civil lawsuits in the United States are settled or dismissed before they get to trial. Theodore Eisenberg & Charlotte Lanvers, "What is the Settlement Rate and Why Should We Care?", 6 Journal of Empirical Legal Studies (2009). This article will summarize the initial process and preliminary pleadings associated with a Texas action.
The Original Petition
When someone sues another person or entity in Texas, the plaintiff files an Original Petition in state court (usually county or district court). The Petition details the parties being sued, which laws the defendant allegedly violated (known as causes of action), and what kind of relief (usually monetary or injunctive) the plaintiff is seeking (Tex. R. Civ. P. 78).
Once filed and accepted by the clerk of the court, it is the plaintiff’s responsibility to provide notice or Service of Citation to the defendant.
Service of Citation
After the plaintiff files suit, he or she must provide proper notice to the defendant(s) that are being sued. Proper service includes the Petition as well as the citation form from the court clerk. There are a few ways to provide proper service in Texas.
1) Sherriff/County constable. The plaintiff fills out a form and pays a fee to the county clerk to issue citation. A constable or other officers from the sheriff’s office will then take the proper documents to the defendant (Tex. R. Civ. P. 103).
2) Private delivery of citation. The plaintiff can also hire private process servers to personally deliver the Petition and Citation (Tex. R. Civ. 103).
3) Service by mail. You can request that the county clerk mail the Petition and Citation by registered/certified mail, with return receipt requested. However, if it is not signed by the defendant and returned (or another person signs it) the service is not legal (Tex. R. Civ. P. 103).
4) Service by publication/posting. A plaintiff may place notice in a newspaper or other publication to effect service. The plaintiff must show that they tried to serve the defendant in another manner but was unable to locate them. Service by publication is usually only used as a last resort because it gives rise to several challenges that a defendant might later employ (Tex. R. Civ. P. 116).
Proper service is a necessary step in beginning any lawsuit in Texas. Failure to effect service may result in a case being dismissed for want of prosecution or other adverse consequences for a plaintiff.
What is in a Petition?
A civil petition must contain all the proper elements as required by the Texas Rules of Civil Procedure (TRCP), or it may be subject to challenges by Special Exceptions or result in other issues for the plaintiff (Tex. R. Civ. P. 91). A good Petition will usually include:
- The names of the parties (can be an individual person, or an entity like a business)
- Where the lawsuit should take place, also known as venue. (Tex. Civ. Prac. & Rem. Code Ann. § 15.002 (West))
- What cause of action(s) the plaintiff is seeking damages under (why they are suing)
- Initial discovery requests such as Requests for Disclosure and Requests for Production (requests to gather evidence and basic information about the case) (Tex. R. Civ. P. 194.1 & 194.4)
- How the plaintiff was damaged and to what extent
- Prayer for relief (the kind of damages they are seeking, money, injunctions, attorney’s fees, etc.)
- A Request for jury trial if the plaintiff desires trial by jury as opposed to a bench trial (trial by judge)
Once the defendant is properly served, the clock begins ticking for the defendant to file an answer. An Answer is a legal response to the plaintiff’s original petition. In Texas, the defendant has 20 days and until 10 a.m. the following Monday after the day of service to file an answer, or the plaintiff may proceed with a motion for default (Tex. R. Civ. P. 83 & Tex. R. Civ. P. 239).
It is prudent to hire an attorney BEFORE filing an Answer. Certain motions and challenges can only be filed before the defendant’s formal Answer (e.g. venue or a challenge to jurisdiction by Special Appearance) or these defenses may be forever waived (Tex. Civ. Prac. & Rem. Code Ann. § 15.002 (West) & Tex. R. Civ. P. 120a).
While hiring an attorney is always preferred, some defendants may consider representing themselves, also known as appearing pro se. Note that defendants may appear individually but may not answer for an entity such as an LLC or corporation. The only exception to this rule is suits in small claims court (overseen by a Justice of the Peace) (Tex. R. Civ. P. 500.4).
What is in the Answer?
The Answer is the formal legal response to the lawsuit. The defendant officially denies the plaintiff’s claim(s) for relief. They can issue a General Denial where, as the name suggests, the defendant generally renounces the plaintiff’s causes of action. There are also certain denials that require other formalities of pleading that include sworn statements by affidavit, known as verified denials. These are detailed in the TRCP (Tex. R. Civ. P. 93).
Defendants may also choose to include various affirmative defenses in their answers. An affirmative defense is an answer to a charge or complaint in which a defendant takes the offense and responds to the allegations with his/her own charges, which are called "affirmative defenses." These defenses can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles. Black’s Law Dictionary.
What About Counterclaims?
What if you as the defendant want to countersue the plaintiff? Countersuits are sometimes brought in combination with an original answer or sometimes served as a standalone Counter-Petition. Counter-claims detail causes of action against a plaintiff and are typically served under (Tex. R. Civ. P. 21a).
Seeking Legal Help
It is important to narrow your search for a lawyer based on the substance of the lawsuit and the location of the action. Qualified local counsel will result in the most efficient and competent representation.
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