• Process of a Lawsuit
  • The Civil Process
  • The Criminal Process
  • The Trial Process
  • Small Claims Court
  • Resources

The American legal system uses an adversary model to settle disputes. This model pits parties against one another in a contest to persuade an impartial third party (either a judge or jury) to accept their version of the dispute. Ideally, by comparing the two versions, a judge or jury is able to discern the truth and make a just decision.

One of the fundamental distinctions in the American legal system is the difference between civil and criminal matters. Civil cases resolve private conflicts between people, businesses or the government, often by determining money damages for some harm. Criminal cases entail the enforcement of law by the government and may involve fines, incarceration, or (in states with the death penalty--such as Texas) death.

Despite their differences, civil and criminal lawsuits do share some of the same procedural rules. For example, both types of suits must conform to statutes of limitations. A statute of limitations is a law setting the period of time during which a lawsuit must be filed. The time period varies depending on the legal claim. If a case is not filed within the period set by law, the right to file that lawsuit is lost.

Both civil and criminal cases also have to meet certain jurisdictional requirements. Jurisdiction refers to rules governing which court has authority to hear a particular case. The Texas district courts, for example, may hear any case unless exclusive jurisdiction is given to another court. Texas county courts generally hear misdemeanors and civil disputes involving more than $200 and less than $5000, but cannot hear divorce, slander and defamation cases and certain land disputes. This is what is known as subject matter jurisdiction. Also, a court must have personal jurisdiction over the parties in the case. Parties must either reside in or have some kind of significant contact with the court's geographic region. Otherwise, people could be sued anywhere in the nation.

What follows is a discussion of how a lawsuit moves through either the civil or criminal court system. The use of small claims court also is discussed.

The parties in a civil lawsuit are known as the plaintiff and defendant. The plaintiff brings the lawsuit against the defendant by having his or her attorney file a petition or complaint with a court. The complaint states what the dispute is about, why the defendant is responsible, and asks the court to take a stated course of action, usually awarding money damages. Other forms of remedy can also be sought, such as an injunction, which bars a person from doing a specific act, either temporarily or on a permanent basis. The plaintiff also serves a copy of the complaint, together with a summons, on the defendant. A summons is an official court document notifying the defendant that he or she must answer the complaint in writing within a specified period of time. If the defendant does not answer in time, the plaintiff wins by default.

The defendant's written response to the complaint is known as the answer. The answer admits or denies allegations in the complaint. It also states any defenses to the complaint, such as if there is a lack of subject matter jurisdiction or the statute of limitations has already expired. The answer can also contain any counterclaims that the defendant would like to make against the plaintiff. The counterclaims, however, have to relate to the plaintiff's complaint. The defendant cannot counterclaim about entirely unrelated issues--that would be a different lawsuit.

As any lawyer can tell you, an uncomplicated lawsuit is a rarity. Plaintiffs may sue additional defendants and bring them into the original lawsuit. Outside parties with related claims sometimes wish to intervene. Defendants may make counterclaims against the plaintiff, sue other third parties and bring them into the original suit, or even sue other co-defendants. For situations in which there is a large class of plaintiffs with similar claims against one or more defendants, plaintiffs can seek to file a class action lawsuit. An example of a class action would be people all over the country who have been hurt by a product and who sue the manufacturer in one single action. The rationale behind such suits is that both plaintiffs and defendants benefit by having one large lawsuit rather than hundreds or thousands of individual ones. The Class Action Law Chapter describes class action lawsuits.

In preparation for trial, parties often gather information from one another and from other sources. This period of information gathering is known as discovery. Discovery can take a number of different forms. Parties can ask one another for copies of documents; they can submit interrogatories, which are written questions the other party must answer under oath; they can ask the other party to submit to a physical or mental examination and provide the examination results; or they can conduct depositions, which are sworn statements by witnesses conducted in question and answer form.

The vast majority of cases settle before the parties reach the courthouse steps. Sometimes the cost and effort of preparing for trial will persuade parties to reevaluate their positions. Parties may negotiate their own settlement or use some means of alternative dispute resolution (ADR) to bridge their differences. Since July 1, 1994, parties to a civil lawsuit in Texas have been required to consider the possibility of settlement through ADR (the Alternative Dispute Resolution Chapter). Another way a lawsuit can be concluded before reaching trial is through a summary judgment. If, after the complaint and answer have been filed, it is clear that there is no dispute concerning the facts, only the parties' interpretation of the facts, then the judge will grant a motion of summary judgment and make a decision by applying the facts to the law.

However, if there is a genuine dispute about the facts in the case and the parties are not interested in settling, they will proceed to trial. An outline of how a trial is conducted follows a discussion of the criminal process.

In the criminal process, either the state or federal government is seeking to detain and punish a person whom the government believes is guilty of committing a crime. The U.S. Constitution guarantees certain rights and protections to persons being prosecuted by the government. There is, for example, protection from unreasonable search and seizure, a right to counsel, a right to a jury trial, a right to a speedy trial, and a right to confront witnesses. How people are treated in the criminal process is largely a matter of constitutional law. What kinds of acts or omissions are considered crimes and how they are punished is largely governed by the state. (For a discussion of Texas criminal law see the Criminal Law: DUI & Misdemeanors and Criminal Law: Felonies & White Collar Crime Chapters.)

The criminal process begins when a person is arrested. The police can arrest someone if they have probable cause to believe that the person has or is in the process of committing a felony, or if a misdemeanor was committed in the presence of an officer. An example of a felony is burglary, rape, or murder. An example of a misdemeanor is shoplifting, willfully telling the police false information about a crime, or knowingly transmitting sexually dangerous diseases. The police can also arrest someone if they have a warrant. A warrant is a court order charging that there is probable cause to believe a person has committed a crime and should be brought into court.

When making an arrest, the police are entitled to use all reasonable and necessary force to overcome any resistance. Regardless of a person's feelings about being arrested, it is best not to resist. Resisting arrest with a deadly weapon is a felony in Texas; resisting arrest with force, but without a weapon, is a misdemeanor. Even if a person is found not guilty of the crime for which he or she was arrested, he or she still can be charged with resisting arrest.

As most people know from television, after someone has been arrested, the police must inform him or her of certain constitutional rights before being questioned. The 1966 U.S. Supreme Court case, Miranda v. Arizona, requires that any arrested person be told (1) they have the right to remain silent; (2) anything they say can be used against them in court; (3) they have a right to an attorney; and (4) if they cannot afford an attorney, one will be provided without charge. If these Miranda warnings are not given, evidence of admissions or confessions made by the arrested person during police questioning cannot be used in court.

A person has the right to an appearance before a judge within 24 hours of his or her arrest. At this initial appearance, the judge will inform the person of the charges against him or her and will determine whether pretrial release is permissible. A person in custody for the alleged commission of a crime usually is entitled to pretrial release, unless he or she is accused of a capital offense (a crime punishable by death) or an offense punishable by life imprisonment and the proof of guilt is "evident or the presumption great." Depending on the situation, the accused may be released on his or her own recognizance, may be placed in the custody of a designated person or organization agreeing to supervise the accused, or may have to execute a bail bond. In any case, the accused must agree to return to court for further proceedings. If the government believes the accused may flee or will place the community at risk, it can file a motion for pretrial detention.

If the attorneys for the government believe that the arrest was justified and the available evidence supports the arrest, the government will charge the accused person with a crime. Charging can be done directly with a document known as an information, or a grand jury can issue an indictment. A grand jury is a panel of citizens that determines whether there is sufficient evidence to charge a person with a crime. A grand jury does not determine guilt or innocence of a defendant; that task is given to a petit jury during the trial portion of the criminal process. Both an information and an indictment are formal charging instruments that specify the crime and the accused, and give a court jurisdiction to try the case. Capital felonies only can be charged by indictments.

The arraignment is the accused's formal response to the charges filed by the government. The accused may plead guilty, not guilty, or nolo contendere. A plea of nolo contendere means that, without admitting guilt, the accused will not contest the charges made by the government. Judges will not always permit a nolo contendere plea.

If the accused enters a plea of guilty or nolo contendere, there is no need for a trial and the next step is sentencing. If the accused enters a plea of not guilty, the parties will proceed to trial. Along the way, the accused might file motions attempting to suppress the evidence against him or her on constitutional grounds. Evidence might have been seized without a proper warrant or a confession might have been obtained improperly. Also along the way to trial, and sometimes during trial, plea bargaining may occur. That is, the accused might agree to plead guilty to a lesser charge if the prosecution agrees to drop the more serious charge. In the interest of expediency and moving cases through the courts, plea bargaining typically is encouraged.

Whether a case is civil or criminal, the basic process of a trial is similar. The decision maker in a trial can be either a judge or a jury. In civil cases, the parties may have a right to a jury, depending on the subject matter, whether there is an issue of fact to be decided, or whether one party has applied for a jury trial. All defendants facing serious criminal charges have an absolute right to a jury. Juries consist of 12 jurors in the district courts (or fewer in civil cases if the parties agree) and six in the county courts and justice of the peace courts.

The first step in a jury trial is jury selection, otherwise known as voir dire. During voir dire the attorneys, and occasionally the judge, ask questions of potential jurors in an attempt to gauge their capacity to be fair and impartial. Persons who may somehow be biased or whom the attorney believes will not be sympathetic to his or her case can be removed through a process known as a peremptory challenge. Each attorney has a limited number of peremptory challenges and cannot remove a prospective juror for reasons such as sex or race. After a jury is selected, the members are sworn in.

Next come the opening statements. Each side tells the jurors its version of the case and what it intends to prove. The plaintiff in a civil case (and the prosecution in a criminal case) gives its opening statement first. Following opening statements, the plaintiff or prosecution proceeds with the evidence of its case. One form of evidence is the testimony of witnesses. The plaintiff or prosecution will ask a witness to the witness stand and, after the witness is sworn in, will ask him or her some questions. This is known as direct examination. After the plaintiff or prosecution is finished, the defense is then permitted to ask the witness some questions. This is called cross-examination. After cross-examination, the plaintiff or prosecution may again question the witness. This is known as redirect examination. Evidence also can take other forms, such as documents, charts, pictures, and audio or video recordings.

After the plaintiff or prosecution has finished presenting its case, it is the defendant's turn. This time, the defense can call witnesses for direct examination and the plaintiff or prosecution will conduct cross-examination. During both the plaintiff's or prosecution's case and the defense's case, attorneys will make objections about what questions can be asked of the witnesses and what evidence can be introduced into the record. There are very specific rules governing what evidence is admissible.

After both sides have concluded presenting their cases, the attorneys give closing arguments. In closing, an attorney will attempt to summarize the evidence presented and explain why his or her side should prevail. If a judge is deciding the case, he or she will thank everyone involved and render a decision within a certain period of time, usually 90 days. If a jury is deciding the case, the judge will instruct the jury as to what law must be applied to the evidence of the case.

One area in which the civil and criminal trial processes differ is the standard of proof. In a civil trial, the plaintiff generally must prove his or her case by a "preponderance of the evidence." Another way to put this is "more likely than not." In a criminal trial, the prosecution must prove its case "beyond a reasonable doubt." The criminal standard is higher because in a criminal case, a person's liberty, perhaps even his or her life, may be at stake. In a civil case the jury verdict need not be unanimous. If 10 out of 12 or five out of six jurors agree as to how the case should be resolved, that is enough for a verdict. In a criminal trial, the jury must be unanimous. If it is not, a hung jury is declared and the case may be tried again.

Both parties in a civil trial and the defendant in a criminal trial have the right to appeal a decision if they believe some error was made. Prosecutors, however, cannot appeal a not guilty verdict. (A discussion of the federal and state appellate courts is contained in The Texas Court System Chapter.)

An option for a consumer 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 that court, and the judgment of the court will be final.

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.