STEPS TO TAKE BEFORE YOU FILE A LAWSUITSeriously consider whether you have a good case.
Determine the theories of law under which you will file your case.
Determine whether you have evidence to prove your case.
Determine whether there are witnesses who will help prove your case.
Determine the expenses you will incur in bringing the lawsuit and consider sources for obtaining the money. Prepare a litigation budget.
Consider whether you have the physical and emotional energy to pursue a lawsuit.
Think about whether the defendant will sue you back.
Carefully consider whether you will be able to collect on a judgment if you are successful in court.
Check whether your lawsuit is timely.
Before you file your lawsuit, make another attempt to settle your dispute. After you file your lawsuit, use the litigation process to obtain an acceptable settlement along the way.
STEPS IN THE CIVIL LITIGATION PROCESS:Determine Theory of Case and Appropriate Jurisdiction (which court to file in, state or federal, which county or district).
Prepare and File Plaintiff’s Complaint with the Clerk of the Court. The Complaint is the pleading that starts a lawsuit.
Service of Process
Serve Summons on Opposing Party. Summons gives opposing party notice that suit has been filed against them.
Opposing Party Files Answer and/or Counterclaim/Cross-Action
Begin Discovery Process by Filing Appropriate Requests.
Permissible forms of discovery are:
a. requests for disclosure;
b. requests for production and inspection of documents and tangible things;
c. requests and motions for entry upon and examination of real property;
d. interrogatories to a party;
e. requests for admission;
f. oral or written depositions; and
g. motions for mental or physical examinations.
Respond to Opposing Party’s Discovery, if any.
party must respond to written discovery in writing within the time
provided by court order or the rules. In doing so, the party must make
a complete response, based on all information reasonably available to
the responding party or the party’s attorney at the time the response
is made. If a responding party refuses to provide discovery responses,
the requesting party make file motions seeking to compel responses.
Potential Pretrial Disposition
Judgment – a judgment that may be rendered by the trial court at the
plaintiff’s request as result of a defendant’s failure to file an
answer within the time
required by law or when the defendant has filed a timely answer but fails to appear for trial.
Judgment – a trial court is empowered to grant a motion for summary
judgment when it is conclusively shown that the moving party is
entitled to judgment as a matter of law. There must be no genuine
issues of material fact OR there must be no evidence of one or more
essential elements of a claim or defense on which the adverse party has
the burden of proof .
Settlement – The main object of settlement
is an end to all or part of the litigation. Ending the lawsuit may
involve an agreed judgment or simply an order of dismissal. A final
judgment that is based on a settlement agreement must comply with the
agreement or it is subject to reversal on appeal.
(Nonsuit) – Generally, any plaintiff may voluntarily dismiss a case, or
take a nonsuit, at any time before all the plaintiff’s evidence (other
than rebuttal evidence) has been introduced. Nonsuit is not
available if the defendant, prior to the plaintiff’s written or oral
motion for nonsuit, has filed pleadings seeking affirmative relief.
A nonsuit does not excuse payment of court costs and has no effect on
any, pending motion for sanctions, attorney’s fees, or other costs.
Involuntary (dismissal granted against a party without their consent or request) – A
plaintiff who fails to bring suit properly may be subject to having
that suit dismissed or abated. Defects that can lead to dismissal or
abatement are: lack of jurisdiction; the presence of circumstances
outside the suit which provide grounds for defendant’s plea in
abatement; and defects in the plaintiff’s pleadings which are not cured
following the sustaining of a special exception.
Filing Pretrial Motions, if any, such as:
for Jury Trial – To be entitled to a jury trial, a party must have a
right to a jury trial and must properly request a jury.
for Continuance – A motion for continuance is a request to postpone or
delay a case that has been set for hearing or trial. The motion must be
in writing, must state the specific facts that support it, and must be
verified or supported by affidavit.
Motion to Amend Pleading – A party may amend its pleadings prior to trial.
Petition in Intervention – The purpose of a petition in intervention is to join a lawsuit that is already in progress.
Trial – Jury or Non-Jury
Case proceeds to trial, either before the judge only or before judge and jury.
judgment is the official document announcing the resolution of the
lawsuit. The judgment becomes effective once it is rendered. The
judgment is rendered when the judge makes an official announcement
either orally in court or by written memorandum filed with the clerk.
The timetable for appeal begins to run once the judgment is signed by
for New Trial – A litigant may obtain an order granting a new trial and
setting aside the judgment by filing a timely motion for new trial and
showing good cause for the relief. To show good cause, the movant must
demonstrate that the error complained of affected, or might reasonably
have affected, the result. Ordinarily, a showing of probable injury or
harm must be made. The trial court is not compelled to grant a new
trial merely because all parties
file motions for new trial.
a Motion for New Trial within 30 days after the judgment is signed has
the effect of extending the time to perfect an appeal by the filing of
a notice of appeal.
Notice of Appeal – Filing a notice of appeal
begins an appeal from a trial court judgment. Any party who seeks to
change the trial court’s judgment or other appealable order must file a
notice of appeal.
Enforcement of Money Judgment
money judgment is rendered and signed, the winning party is entitled to
begin proceedings to enforce that judgment. Depending on the situation,
the following are some actions that can be undertaken to attempt
satisfaction of the judgment:
Abstract of Judgment – File an
abstract of judgment in the judgment records of the County Clerk of
every county where the defendant/judgment debtor may currently own or
thereafter acquire interest in nonexempt real property, to perfect a
judgment lien on that interest.
Writ of Execution – This is the
principal process for collection of money judgments. The writ is issued
by the clerk and delivered to a sheriff or constable to levy on
nonexempt real and personal property belonging to the
defendant/judgment debtor, sell the property and public auction and
apply the proceeds of
the sale to the payment of the judgment.
under Turnover Statute – This statute empowers the trial court to
assist a judgment creditor in reaching the judgment debtor’s property
to satisfy the judgment. The trial judge may order the judgment debtor
to “turn over” nonexempt assets to an officer or a receiver when those
assets cannot be readily
attached or levied on by ordinary means.