• Process of a Lawsuit
  • Civil Process
    • Civil Pretrial Process
  • Criminal Process
    • Criminal Pretrial Process
  • Trial Process
  • Small Claims Court
  • Recovering Fees
  • Settling Out of Court
  • Resources

Our legal system uses an adversary model to settle disputes. This model allows opposing parties to present their cases to an impartial third party who renders a decision. Under the adversary process, the third party determines the facts of the case, determines the governing law, applies the law to the facts, and provides a judgment.

Our legal system makes several distinctions between civil and criminal cases. Civil cases resolve private conflicts involving people, businesses, and possibly the government. Criminal cases involve the enforcement of a law by the government. Disputes may be resolved before any legal action is filed, after legal action is filed in court, or while a trial is in process but before the judge or jury renders a decision. Most lawsuits, whether civil or criminal, are resolved before trial. Most cases have to be filed within the time limits set by law. These limits are known as statutes of limitations. The time limits vary depending on the type of legal claim filed. If a case is not filed within the time period set by law, one loses the right to file a lawsuit.

This chapter outlines the process of a case through the civil and criminal court system. It also outlines the trial process and discusses the use of small claims court.

The Texas Legal & Judicial System Chapter discusses the state and federal court systems in Texas, and the Civil Appellate Law Chapter describes the appeals process. More information on specific subjects also is located in such chapters as the Criminal Law: White Collar Defense Chapter and the Personal Injury Defense Law: Professional Malpractice Chapter. The Alternative Dispute Resolution Chapter discusses options for resolving disputes outside the courtroom.

Civil cases make up the majority of cases filed. Examples of subjects of civil cases include personal injuries and contract disputes. In civil cases in which damage is done to a party, that party can claim money damages. However, depending on the case, a party may ask for something other than money damages. A person may ask the court to issue an injunction against another party. An injunction bars a person from doing a specific act. The court may issue a restraining order restricting the defendant's actions until the case is resolved. For example, if a person signs a contract to buy land from the owner and the owner turns around and sells the land to another person, the first buyer may ask the court to restrain the seller from completing the sale to the second buyer until the case between the first buyer and the seller is resolved.

On rare occasions, civil cases may be filed as class actions. Class actions arise when there is a common question of law and fact for a large number of persons. There is a special process to go through to establish a class action. This certification process can be lengthy and complicated. Class actions are discussed in detail in the Class Action Law Chapter.

The burden of proof in a civil case is on the party who initiates the case, the plaintiff. The plaintiff must prove his or her case by a preponderance of evidence. This means that the plaintiff's evidence must be more convincing than the evidence presented by the opposing party, the defendant.

Civil juries in the district court consist of 12 persons, or fewer than 12 if the parties agree. Civil juries in the county courts and justice of the peace courts have six people. Verdicts need not be unanimous. If 10 out of 12 or five out of six of the jurors agree as to how the case should be resolved, that is enough for a verdict. A person is limited to bringing one legal action for damages arising from the same circumstances.

Civil Pretrial Process

As previously mentioned, a civil case is a private dispute between two or more parties. The following is an outline of the steps taken when filing a civil action in a Texas district court.

The plaintiff's attorney prepares a document called a petition or complaint. The petition states what the dispute is about, states why the defendant should be held responsible, and asks the court to take a stated action, such as awarding damages. The petition, along with a summons, is delivered to the party against whom the action has been filed. A summons is a written order stating that a defendant must answer the plaintiff's petition. There are several procedural requirements for serving, or delivering, a summons.

The defendant has a specific period of time to respond to the petition. The defendant's written response is an answer. The answer admits or denies allegations in the complaint, states any defenses to the plaintiff's complaint, and asks the court to decide in favor of the defendant. The defendant also may state any claims he or she has against the plaintiff. These claims by the defendant against the plaintiff comprise a counterclaim. The plaintiff must respond to the defendant's counterclaim in the same manner the defendant is required to respond to the petition. Failure to respond results in the complaining party winning by default. The petition, answer, and counterclaim, if any, are called the pleadings. These documents are filed in the district court.

If it appears that, based on all the information presented, one side clearly has the advantage, that side may file a motion for summary judgment, which requires that the judge rule in favor of the moving party if there are no issues of fact to decide and the party filing the motion is clearly entitled to prevail under the applicable law. Another way a party seeks to end a case is by filing a motion to dismiss the case. There are a number of grounds on which a party may move to dismiss a case. For example, a party may claim the court does not have jurisdiction, or that the action was brought too late under the statute of limitations.

There are several steps before a case goes to trial. To assist the parties in preparing their own case and learning about the other side's case, a process called discovery occurs. During discovery, each side may ask the other to answer written questions, which are called interrogatories, provide copies of documents, or answer questions orally under oath, which is known as a deposition. If the defendant is a corporation or partnership, it must designate someone to speak on its behalf. A deposition usually is held in an attorney's office and is recorded by a stenographer. Deposition testimony can be used later to impeach a witness, if the witness' testimony at trial is different from the testimony given at the deposition. Each side also may make motions to the court asking it to settle legal questions that arise.

During this pretrial process, a settlement may be arranged. Most of the civil cases filed in Texas state courts are settled without ever going to trial. In fact, since July 1, 1994, the parties to a civil lawsuit have been required to consider settlement through a process known as alternative dispute resolution (ADR) (see the Alternative Dispute Resolution Chapter). If a settlement is not arranged during the pretrial process, the parties proceed to trial. An outline of the trial process follows the Criminal Pretrial Process section.

Unlike civil cases, which are private disputes, criminal cases involve persons who are charged by the government with violations of the law. Examples of crimes are assault, burglary, rape, and murder. Crimes in Texas are divided into categories ranging from the most serious crimes to less serious crimes. The most serious crimes are called felonies. Murder and rape are felonies. A person convicted of a felony may be sent to prison for 180 days or more and receive a fine. A person convicted of a capital felony may receive the death penalty. Less serious crimes are misdemeanors. A person convicted of a misdemeanor may be sent to jail for up to a year and receive a fine. Other violations, such as parking tickets and moving violations, are called infractions. A person guilty of one of these offenses cannot be sent to jail but can be fined.

The burden of proving a case against a defendant in a criminal proceeding is on the party bringing the charges, the prosecutor. A criminal defendant does not have to prove his or her innocence; the prosecutor must prove that the defendant is guilty. Decisions in criminal proceedings are based on a different standard than decisions in civil cases. In order for a person to be found guilty of a crime, the prosecution must prove beyond a reasonable doubt that the defendant is guilty.

There are 12 jurors in criminal cases in the district courts, and six jurors in criminal cases in the county courts and justice of the peace courts. Unlike a civil proceeding, all jurors must agree on a guilty or not guilty verdict. If a jury fails to reach a unanimous verdict, it is called a hung jury and a mistrial is declared. If a mistrial is declared, a new trial may be held.

Criminal Pretrial Process

The following is an outline of the pretrial procedures for a felony criminal case filed in a Texas district court.

When a crime is committed, the police conduct an investigation. When a person has been identified as the probable perpetrator of the crime, the evidence linking that person to the crime is presented to either a prosecutor or, in some instances, a grand jury. If the prosecutor or grand jury believes there is enough evidence to prosecute, the prosecutor files a complaint against the defendant or the grand jury indicts the person. Based on the complaint or indictment, a warrant for arrest or a summons to appear in court is issued to the suspect. Once a suspect is arrested, he or she is charged with the crime. If the police wish to question a suspect, the suspect must be advised that he or she does not have to answer the questions and has the right to an attorney. This advice is known as a Miranda warning.

Soon after arrest, the suspect appears before the judge, who informs the person of the charges and tells him or her again of the right to an attorney. Although defendants have the right to represent themselves, most prefer to be represented by attorneys. If a defendant wants to be represented by an attorney but cannot afford one, the court appoints a public defender. At this initial court appearance, bail is set. The amount of bail set depends on several factors, including the likelihood that the defendant will return for future proceedings, the seriousness of the crime, and the risk to others if the defendant is released. A person will be released on bail only if he or she poses no threat to the community.

At the next court appearance the judge reviews the evidence against the suspect to make sure there is probable cause to believe he or she committed the offense and, if so, the defendant is arraigned. The judge reads the charges to the defendant, and the defendant answers by pleading either guilty or not guilty. If the defendant pleads guilty, the next step is sentencing. If the defendant pleads not guilty, then his or her case is scheduled for a trial.

At any stage in the proceeding, the defense and the prosecutor may engage in plea bargaining. During plea bargaining, a defendant may agree to plead guilty to a lesser criminal charge in exchange for dropping the more serious charge. If such an arrangement is made, there is a hearing to determine whether the government will accept the plea. Like a guilty plea at an earlier stage, the next step is sentencing.

Before a defendant is sentenced, there is a pre-sentence investigation. During the investigation, the court considers many factors, such as the defendant's criminal history, his or her physical and mental condition, the evidence presented at trial, and any other circumstances. The sentence may consist of a fine, imprisonment, or probation. Texas judges have guidelines to follow when sentencing criminals. There are some instances in which a judge may stray from the guidelines, but the judge must state his or her reasons for doing so.

If a defendant does not plead guilty during the pre-trial process and the charges are not dropped by the prosecutor, the next step is a trial.

Whether a case is civil or criminal, the basic outline of a trial is similar. The decision maker in a trial can be either a judge or a jury. In many cases, there is a right to a jury trial, but this right may be waived by the parties.

If a jury trial is requested, the first step is selecting a jury. A group of persons selected for jury duty is brought into the courtroom and asked questions by the judge and the attorneys. The questioning is to determine whether a person can be a fair and impartial juror. If it is determined that a person cannot be fair, he or she may be removed for cause. Others may be eliminated from the jury by the attorneys without a stated reason. This is known as a peremptory challenge. Each attorney has a limited number of peremptory challenges that he or she may make. When a jury is selected, the members are sworn in.

The next step is the opening statement. The opening statement allows each side to tell the jurors about the case, what to expect, and what each side intends to prove. The plaintiff in a civil case and the prosecutor in a criminal case give their opening statements first.

After the opening statements, testimony begins. The plaintiff or prosecutor, whichever the case may be, calls witnesses to the stand and begins questioning them. The questioning of a witness by the party who asked the witness to testify is called direct examination. The opposing side also has the opportunity to question the witnesses; this questioning is called cross-examination. After cross-examination, the first party may question the witness again in rebuttal. After the plaintiff or prosecution is done presenting its case, it is the defendant's turn. This time, the defense calls and questions witnesses, and the prosecution cross-examines them.

Attorneys for either side may make objections to questions that the opposing side asks or evidence the opposing side wants to introduce. There are rules about what information is admissible in court, and the judge follows these rules when resolving any objections.

After both sides have presented their cases, attorneys give closing arguments. In closing, each attorney summarizes the facts of the case and states why his or her side should prevail. Finally, the judge gives instructions to the jury on the law to be applied in the case. After receiving the judge's instructions, the jury retires to decide the issues in the case. As mentioned before, a jury need not reach a unanimous decision in a civil case, but it must reach a unanimous verdict in a criminal case.

If a party believes that there was an error at trial, he or she can appeal the decision to a higher (appeals) court. However, a prosecutor cannot appeal a not-guilty verdict. Discussion of the appeals process is contained in the Texas Legal and Judicial System Chapter and the Civil Appellate Law Chapter.

An option for a business thinking about pursuing a civil claim is small claims court. Any person 18 years old or older, or any company, governmental agency, or organization can be a party to an action in small claims court. Small claims court has limited jurisdiction and only hears cases in which the amount of damages claimed is $5000 or less. A person may have an attorney assisting him or her during the hearing, but it is not required. The procedures have been simplified so people can represent themselves. Common issues resolved in small claims court include property damage, nonpayment of debts, and dishonored checks.

A person who wishes to file a claim in small claims court--the plaintiff--must fill out a standard small claims court form in the county where the defendant lives or where the claim arose. Upon completion of the form, he or she must sign it before a notary public or a court deputy. The plaintiff also must pay the filing fee. If a plaintiff wins the case, the court can ask the defendant to reimburse the plaintiff for this fee.

After the form is filled out and the fee paid, the clerk will mail notice of the hearing to the plaintiff and defendant. When a defendant receives a small claims notice, he or she has the option of filing a counterclaim against the plaintiff. The defendant pays a fee for any counterclaims. If the counterclaim is more than $7500, the case will be transferred to district court. If the defendant fails to appear at the hearing, the plaintiff may win the case by default.

At the hearing, the plaintiff and defendant appear before a judge. The judge will ask the plaintiff to state his or her case, then the defendant. After the judge has heard both parties, the judge may ask the parties questions. The judge may or may not make a decision at the time of the hearing. When the judge makes a decision, notice of the decision is mailed to both parties. If the judgment is against the defendant, the defendant must pay the judgment immediately. If the amount at issue in the case is more than $20, either party may appeal the judgment to the county court. A new trial will be held in the county court, and the judgment of the court will be final.

In the American legal system, each side generally is responsible for its own legal costs. This means that in business litigation, the prevailing party generally pays its own legal fees. Exceptions to this rule sometimes are provided by statute or by an agreement between the parties. For example, some civil rights laws allow legal fees to be awarded to a prevailing party who sues an employer for illegal discrimination.

Occasionally, business contracts will include provisions requiring the losing party to pay the prevailing party's legal fees in any dispute arising out of the contract. Such legal fee provisions generate a great deal of disagreement in the legal profession. Some lawyers insist upon such a clause in every contract they draft, while other lawyers counsel their clients never to sign a contract that contains one. It is important to realize that legal fee provisions are a sword that can cut both ways. There is no way to know whether the side that drafts the provision will be the winner in any disagreement. However one feels about them, legal fee provisions are now included in most printed leases, promissory notes, and other business contracts. Because legal fees can be very expensive, it is worth considering carefully the possible effect of such a provision before signing an agreement that contains a legal fee provision.

A businessperson never should lose sight of one option that remains open throughout the dispute resolution process--settlement. Often the client needs to keep settlement in mind because most lawyers are trained to solve problems in court rather than out of court. The client may need to remember--and to remind his or her lawyer--that the primary objective is a satisfactory and early resolution of the dispute, not total victory at any cost. It is a wise idea to include settlement strategies early in discussions with the attorney one hires to handle a matter, and to reconsider settlement options periodically. As time passes and legal fees mount, settlement or alternative dispute resolution may become an increasingly attractive option to proceeding to court. If clear goals are set from the start, and those goals are periodically reviewed, it may be easier to settle later. If the parties do reach a settlement agreement, each side's attorney should be involved in drafting and reviewing the settlement papers before signing. It is possible for a party to agree to settle a matter without admitting fault and without compromising its position in any other disputes.

The Texas State Bar Association can provide additional information on the process of a lawsuit in Texas. The Bar Association is located at 1414 Colorado Street, Austin, TX 78701, or can be contacted at P.O. Box 12487, Austin, TX 78711-2487, (512) 463-1463 or (800) 204-2222, fax (512) 463-1475.

For more information on the criminal process in Texas, contact the Texas Criminal Justice Department, Public Information Officer, P.O. Box 99, Huntsville, TX 77342, (409) 294-2101, fax (409) 294-2123.