Civil Litigation in Texas: The Basics in Three Phases
Before you begin reading about the three main phases of civil litigation, you should know that the civil litigation process can, generally, take two main different forms.
Uncontested means that both sides agree on a desired outcome but are using the court system to make their agreement legally binding. These people may be required to have their agreement approved by a judge or they may decide to do so as a way to help protect their interests. Uncontested cases can be successfully completed through careful research, attention to detail and organization.
Contested means that the people involved in the case do not agree on what the outcome of the case should be. Contested cases require that both sides argue their position to explain why the law says that a judge should rule in his/her favor. Contested cases will generally require much more work than an uncontested case- even if the other side is not represented by an attorney. This is because you will need to learn trial strategy and prepare to clearly explain the way that the law applies to the facts of your case. Furthermore, you will need to give this explanation while addressing the other side, who will be presenting an explanation of the law that, challenges your explanation, arguing that it is only fair for the judge to rule in their favor instead of yours.
If your case is contested and the other side is represented by an attorney, you should not try to represent your own interests during a trial unless absolutely necessary. Instead, contact us through TexasLawHelp.org for more information about other options for solving your legal problem
The pre-trial phase of litigation can be explained in steps. You should expect these steps to be time consuming, but also essential to a successful case.
Step 1: Research
Preparing a legal claim includes learning whether or not you have a viable claim that can be heard by a judge, what laws apply to the facts of your case, what facts are relevant to your claim and what type of remedy you can ask for in court. For more information about the specific steps you should follow to successfully prepare a legal claim, click here to review our Legal Research Guide.
As part of your research, investigate Alternative Dispute Resolution Even experienced attorneys regularly settle their cases outside of court using ADR. This might be the best option for you too. It could save you time, money and even unnecessary damage to your personal relationships. Click here for an Alternative Dispute Resolution video.
Step 2: Filing
Use your research to tell you what specific information you are required to include in your petition. A petition is the document you write that asks the court to give you a certain outcome To file, take 3 copies of your petition to the Clerk of the Court. The clerk will stamp them to show that you are officially asking the court for the things listed in your petition.
When you give your petition to the clerk you should be ready to pay a filing fee. Filing fees are often $200 or more. If you cannot afford to pay the filing fee, you may file an affidavit or declaration of indigency to ask the court to waive the fee for you. This form may also be called a Pauper’s Oath or Statement of Inability to Afford Payment of Court Costs.
Keep in mind: The court will not contact you with a court date or decision. Instead, you must complete the next steps until you have a court order signed by a judge.
Step 3: Notice & Response
After you file your petition with the court, you are required to tell the person, people or business that could be affected by your case that you have filed. This is called giving legal notice. Your research in Step 1 should tell you who the law requires you to notify in your specific type of case. If you are unsure of who needs to be notified, you should research the notice requirements of your type of case more specifically.
The person who files the Petition is called the Petitioner or Plaintiff. (See Texas Rules of Civil Procedure Rule 22.) The other side is usually called the Respondent in a civil case, but may be referred to as the Defendant. (See Texas Rules of Civil Procedure, Rule 99.)
To give legal notice, ask the court clerk to issue citation, and arrange for a process server to give the citation to the person (or business) you’re suing. You may not serve the respondent yourself. The only way to avoid formally serving the Respondent is if your case is uncontested and the respondent shows their agreement by signing and filing a Waiver of Citation.
Response - If the respondent receives notice of the case but thinks that he/she is outside of the court’s jurisdiction, then the respondent should file a Special Appearance before filing anything else.
Filing any other type of response before a Special Appearance will tell the court that the respondent submits to the court’s jurisdiction.
If the respondent does not have a jurisdictional challenge, he/she should file an Answer with the court clerk to show that he/she is interested in the case and is not ignoring the court’s authority. There is generally not a fee to file an Answer.
If the respondent has his/her own claims against the petitioner, then the respondent can tell the court about those claims in a Counter-Petition. There is usually a fee to file a Counter-Petition. An Affidavit or Declaration of Indigency can be used for a Counter-Petition to attempt to waive the filing fees.
Discovery is the legal process each side uses to get information that is relevant to their case but is in the other side’s possession. Discovery has certain time limits and deadlines. If you are unsure of what these limits and deadlines are, you should research them specifically. (See Texas Rules of Civil Procedure, Rule 192.1 and 192.2.)
During the discovery period, each party can ask the other party to:
- Answer written questions
- (Requests for Admissions, Disclosure or Interrogatories)
- Allow a party to look at documents or property
- (Request for Production, Inspection, Entry)
- Submit to a mental or physical exam
- Submit to questioning under oath
Answering Discovery - If you’ve been sent Discovery requests, answer it within the time that the court orders or the civil procedure rules require. Answer completely, based on all information reasonably available to you. (See Texas Rules of Civil Procedure, Rule 192.7 – 193.1)
Sometimes, parties need to ask the court for things before or during trial. To ask the court for something during litigation, you will usually need to file either a motion or request. Some of the most common motions and requests are:
Request for Jury- This request should be made if you want a jury to decide your case. Due to the current state of the law, it can be difficult to get a jury in your case. (See Texas Rules of Civil Procedure 216a).
Motion for Continuance- This written motion asks the judge to postpone your hearing until a later date. This motion must include the reasons why your hearing should be postponed. (See Texas Rules of Civil Procedure 247, 251-254, 330(c-d)).
Motion to Amend Petition - You may change your petition before trial by filing a changed petition with the court clerk. This is commonly known as amending a petition. This is done to add or take away something that has been put in the previous petition to the court.
This new petition title should start with the words “First Amended" For example, if you were amending an Original Petition for Divorce you would title the amended petition First Amended Original Petition for Divorce.
The amended petition should be completely filled out so that it is a complete filing. Do not just fill out the parts you want to change, instead fill out the petition with the parts you want to change and the parts you don’t so that it is a complete filing. After filing this amended petition, you must notify the other party so that they know what the changes are.
If you decide to change your petition during the last seven days before trial, you must ask the judge for permission to amend your pleading. To ask for permission, use a Motion to Amend Pleading. (See Texas Rules of Civil Procedure 63-65.)
Temporary Orders- Because litigation can take months to complete, judges will sometimes issue temporary orders that tell the parties what they must and must not do until the final hearing. To ask the judge to order the other side to stop doing something that might harm you or begin fulfilling an obligation, ask for temporary orders in writing. The other side may write their own ask for their own temporary orders as well. The judge will decide what orders are most appropriate.
Ending a case before trial can also be accomplished through submitting a motion to the court. Generally, the motions that might be used to end a case before trial include:
Nonsuit: If the Plaintiff hasn’t shown all of his or her evidence, other than rebuttal evidence, to the court, the Plaintiff can end the case by filing a Notice of Nonsuit with the court clerk. (See Texas Rules of Civil Procedure 162, 163.)
Dismissal: The court can dismiss a case if the Plaintiff didn’t file it properly or didn’t follow the Texas Rules of Civil Procedure. (See Texas Rule of Civil Procedure 165a)
A common way this can happen is a case being Dismissed for Want of Prosecution if no action has been taken in the case.
- Click here for forms to stop this from happening AND forms to reinstate a case if it has been already dismissed for want of prosecution.
Settlement: Generally, parties can work out an agreement and resolve part or all of a case before it goes to trial in a settlement agreement. If this is the case it is a good idea to have a licensed attorney read over the agreement before it is finalized.
Summary Judgment: When there are no disputes about the important facts of the case and based on those important facts there is no evidence to support the claim or defense of the case, the judge can grant a Motion for Summary Judgment, and decide the case before trial. (See Texas Rule of Civil Procedure 166a.)
Default Judgment. The judge can give a default judgment to the Plaintiff when the Respondent has been served with citation, but does not respond to the case or the Respondent has filed a response, but fails to appear for trial. (Texas Rules of Civil Procedure 85, 99, 237, 239.)
The trial phase of the civil litigation process will be very different if your case is uncontested, meaning that both sides agree on what the final outcome of the case should be. If your case is uncontested, the trial phase should be very short and might be better thought of as a “hearing”.
During the final hearing of an uncontested case, you will simply present your signed order to the Judge, answer any questions that the Judge may have about your agreement and then file the order with the Court Clerk once the Judge has signed it.
If you and the other side of your case disagree about what the outcome of the case should be then your case is contested. If your case is contested, then you will need to spend a lot of time preparing for trial.
To prepare for a contested trial you should start by looking for an attorney who offers limited scope representation and can coach you through the issues and strategies that might come up in trial based on the facts of your case. You should also spend time learning the Texas Rules of Civil Procedure, Texas Rules of Evidence and trial objections and practice them regularly so that you are comfortable using them quickly and under pressure.
Step 1: Limited Scope Representation
If you plan to represent yourself in a contested trial, consider hiring a private attorney to provide you with limited scope representation, also known as unbundling. Not every attorney offers limited scope representation. However, attorneys who offer limited scope representation may help you prepare for court at a price you can afford. Limited scope representation is less expensive than hiring an attorney to go to court for you because you will complete most of the work yourself. However, talking to an experienced attorney about the presentation, procedures and objections that you are likely to see and use in court could determine whether you win or lose your case.
- Click here to watch our video about how to find an attorney and Limited Scope Representation
- Click here for an Informational Packet on Limited Scope Representation
Step 2: Procedure
Even if you hire a limited scope attorney to help you prepare your case, you should plan to spend time studying court procedures so that you understand what is happening during your trial. Whether or not you are a lawyer, you will be expected to follow the same rules that lawyers must follow in court. These rules are called the Texas Rules of Civil Procedure.
Once you are in trial, you will not have the chance to research what is happening. Instead, you should prepare for different possible scenarios and outcomes in advance so that you are ready to participate even if things go differently than you expected.
Step 3: Evidence & Objections
In addition to the Texas Rules of Civil Procedure, you should also spend time studying the Texas Rules of Evidence. These rules tell how to introduce and share important information about your case with the court. As you study, make sure that you understand the legal concepts of relevance, privilege, hearsay, and admissibility. Understanding these concepts will help you learn objections that can be used to keep inadmissible or inappropriate information out of court.
Generally, if you disagree with the trial judge about what information should or should not be admitted into court, you need to say something about it during trial. This is because in most cases you will not be able to appeal your case, for that reason, unless the trial judge made a mistake despite your objection. Learning how to properly preserve a mistake for appeal will be part of your trial preparation.
Step 4: Practice
In court, you will need to clearly explain the way that the law applies to the facts of your case.
You will also need to know the legal concepts, available evidence, procedures, and rules that apply to your case.
This already is a lot of information to remember!
In court, you must be ready to apply and present all of this information while the other side interrupts you, tells the judge that your story is not believable, you do not understand the law and then tells their own version of the story that you might know or believe is untrue. To stay calm even in this type of stressful atmosphere, you will need to practice what you want to say over and over again.
Whether you agree or disagree with the judge’s final decision, you should pay special attention to the deadlines that apply to post-trial action. These deadlines will tell you how long you must wait before your judgment is no longer eligible for appeal. Appeal standards are very complex and often overwhelming for non-attorneys. You should talk to an attorney about your case if you want to appeal the judge’s decision OR if the other side has an attorney to help them appeal a judgment in your favor.
Scenario 1: Setting Aside Default Judgments
If you were given improper notice about a case that resulted in a default judgment against you, then you may be able to have that decision set aside. Getting a default judgment set aside is not easy, and is best done with the help of a licensed attorney. If this has happened to you, you should act quickly to contact legal aid or a private attorney to help you set aside the default judgment.
Scenario 2: Enforcement
If you agree with the outcome of your case, you may still need to take extra steps to enforce the judge’s order after it is signed. Read the court order closely so that you understand what must be done to comply with the court order. Make sure you understand your obligations as well as the other side’s obligations to you. Look for deadlines that tell how long you and/or the other side each have to comply with the court order.
If the other side does not comply with the court order by the deadline, you may file a Motion to Enforce or a similar titled document to tell the judge that the court order is not being followed. What you file to enforce a judgment and the specific enforcement process will depend on the type of case you have.
In general to prepare to bring an enforcement action, gather any evidence that shows the other side is not following the court order. Based on this evidence, the judge will decide what steps are appropriate to make the other person obey the court order. Possible penalties for ignoring a court order can include fines, property liens, collection of property by a peace officer, license suspensions and/ or forcing the sale of certain property.
- Click Here if you are having trouble enforcing a child support order.
- Click Here if you are having trouble enforcing your rights to visitation.
- Click Here for information on enforcing a Justice Court (Small Claims Court) Judgment.
Scenario 3: Appeal
If you disagree with the judge’s decision then you may be able to appeal it. An appeal takes place when an appellate court reviews what happened in the trial court. If the appellate court believes the trial court made a mistake (called an error) and believes the mistake made a difference in the outcome of your case (harmful error), the appellate court can change the trial court’s decision or send your case back to the trial court to be tried again.
For more information about appealing your case and other information about the civil litigation process in Texas, visit your local law library and review the following helpful resources:
- Represent Yourself in Court by Nolo Press
- Texas Rules of Civil Procedure – available online.
- Texas Rules of Appellate Procedure – available online
- O’Connor’s Texas Rules – Civil Trials by Michol O’Connor, Jones McClure Publishing
Various Books of Legal Forms called Litigation Guides and Practice Manuals