Being sued can be one of the most distressing events in one’s life. Suing someone else can also be distressing but necessary. Disputes are part of human nature, but litigation in our country is out of control. Litigation is highly complex and the rules vary from state to state and even town to town. However the basic principals are the same. Litigation should always be a last resort. Normally when there is a dispute, the injured party makes a formal demand on the injuring party. Sometimes this is called a demand letter. The letter states what is being asked and the consequences of not receiving it. Some lawsuits aren’t about money at all, but are filed to force someone to do something, or force them not to do something. Lawsuits have three different phases:
1. The complaint phase which is where you make your allegations
2. The discovery phase where you exchange information and take depositions, and
3. the trial phase. In between you have motions of all sorts and hearings which are like little mini-trials.
The complaint phase is probably the most important because if you make a mistake your suit could be dismissed before any evidence is presented or worse you get sanctioned for filing a frivolous suit. This is where you state each claim you are making, the legal basis for the claim, and any legal authority to back the claim. You also have to choose the jurisdiction of your suit, name the parties and request the type of relief you are seeking. Once you file your suit with the court clerk you are issued a cause number and the suit is a matter of public record. In many cases a great deal of personal information about you is in the suit and can be accessed by anyone who cares to look. This is an important consideration if publicity could potentially harm you. Once you have a cause number you will receive a citation from the court and must serve the defendants with the lawsuit using a constable or private process server. This generally costs about $75. Unfortunately you can’t just mail the suit or drop it off. A process server must be a disinterested party who physically hands the papers to the defendants. I once had an employee of the U.S. Securities and Exchange Commission named Shoahana Thoma-Isgur physically hide from a process server. He wound up having to make three trips. Shoshana, a licensed attorney saw him in front of her house and rushed into the garage, refused to answer the door and then claimed harassment. Government lawyers aren’t so confident when the tables get turned. More on this in a later chapter.
Once the parties are served they have 20 days (in most places and 10 days in small claims court) to file an answer. The be more precise, it is the Monday following 20 days after service. For more details see this other blog. The answer could be anything between, gosh you’re right I will pay you whatever you want to a general denial which means they deny each and every claim. In most jurisdictions the discovery phase begins as soon as the parties are served. Discovery is where things get interesting.
Discovery means each side is entitled to discover certain types of information. Not just information that can be used as evidence, but information which is reasonably calculated to lead to the discovery of evidence. Some people file suits just to use discovery. Other times attorneys use it to bury someone in requests which drive up their legal costs. Courts are savvy to the latter and are quick to order sanctions when the discovery process is abused. In most jurisdictions the rules of discovery are similar. Each state has rules of civil procedure as do the Federal Courts and some courts have local rules that supplement the main rules. Whether you are representing yourself or are an attorney, you have to follow the rules very closely. Your goal in discovery is to obtain all the evidence you need to convince the judge or jury that you are entitled to win the suit.
Generally there are several types of information you may obtain and methods of obtaining it. Generally there are requests for disclosure, requests for admissions, written interrogatories, depositions upon oral examination, requests for production of documents and more.
My preferred form of discovery is oral depositions which are video taped. You don’t have to have a court reported take down and transcribe the deposition unless you plan to use it in court. However you can learn a great deal through depositions. The way it works is you have a court reporter or notary swear in the witness, turn on the video and start asking questions. Depositions may be set by agreement between the two parties or if they won’t cooperate or return phone calls you can simply follow the rules to notice a deposition. The notice must be sent to the party or attorney of record, contain the time and place of the deposition, how it is being recorded and who is swearing the witness. In some places you must disclose who all is attending. If you notice a deposition, the other party may object by filing a motion with the court. This motion requires a hearing, which is also time consuming and expensive. Hearings can take hours depending on when you get called. If you properly notice the adverse party of a deposition and they don’t show up, you can file a motion to compel the deposition and ask for sanctions against them. Judges don’t like it when parties fail to cooperate in discovery. You may ask whatever you wish. The other party may object but they still have to answer.
Once the deposition is under way you may ask almost anything from the person’s personal life, professional background or their knowledge of the facts of the case. In Texas there are only two types of objections to a question, 1. Form – which means they don’t like the way the question was asked and you may re-ask it or 2. Direct the client not to answer the question to preserve a privilege. Privileges are beyond the scope of the blog, but include client-attorney privilege, husband-wife privilege, law enforcement privilege, and refusal based on the rule against self incrimination -i.e., taking the 5th.
It is important to know the rules about depositions before you take one, especially if you aren’t an attorney and the other side has one. It is also interesting to note that your opponent if they have an attorney will spend $600 to $25000 per deposition while it may cost you nothing (unless they counter sue and win). Any objection you feel wasn’t justified may be presented to a judge through a motion to compel answers. Here the judge will decide (at a formal hearing) what they must answer, again a time consuming and expensive venture assuming the other side is represented.
Requests for Production (or inspection) of Documents.
Other types of discovery are written forms: requests for document production or inspection, written questions called interrogatories, and request for admissions. Suppose you are suing a car dealer for failing to honor a warranty. You may request any and all records relating to your files kept by the dealer including contracts service records, notes, memos etc. This is called a request for production. You may also ask for documents relating to their internal procedures regarding warranties, a list of other lawsuits relating to warranties, anything else you think might be helpful to you. The dealer does not have to provide anything that is not in its possession. For example a list of other parties who have sued the dealer may not exist even though the company knows who has sued them you can establish a pattern of behavior it may elevate your claim to include deceptive trade practices in addition to breach of contract. In Texas the act which governs deceptive trade practices carries the possibility of treble damages and attorneys fees. In this case you would submit Written Interrogatories. The rules differ in various jurisdictions, but you are allowed to ask simple questions up to the limit of that jurisdiction. Request for Disclosure is automatic in Texas. This means you are entitled to certain information that the other side cannot object to. For example, you are entitled to know the correct names and contact information of all the parties, the legal theories relied on, This request is simple of list of things you want the other side to either admit or deny. The only time this is helpful if it helps you dispose of a list of fact questions early on. For example, did I buy a Chevy Malibu on January 1, 2005, was the salesman John Jones, was the price $34,000. This makes is easier later to assume facts in evidence without having to reestablish those facts. You can also sneak in questions like did the salesman offer free roadside assistance? Was I promised a loaner care etc. Some admissions are so obvious they must answer, while others may be more incriminating to them. Who is in charge, who decided not to honor your claim, what is the precise chain of command, You may also ask other victims of the same dealer for their testimony if it will help you.
Often times, discovery leads to more discovery. You may discover that the person who denied your claim was someone you never heard of. In this case, you would want their testimony or add them to your witness list. The point here is you never would have known their identity had you not sought it. If you get stuck, you can always ask an attorney for help.