Litigation Law


Litigation is the settling of disputes between parties with the aid of the judicial branch of the government.  What has been portrayed on television as a dramatic parry and thrust of words and argument, is, in reality, more like doing your income taxes: long, dull, painful, and highly technical.  It involves more paper than can be used in all of the port-a-potties at Oktoberfest; and ... just like those port-a-potties, it is arduously to be avoided and  unpleasant to be in, but sometimes it is the only avenue available to grant the relief you need.

Litigation begins with the filing of an original petition in state court or original complaint in federal court.  These documents set out the facts surrounding the problem, and the various laws which are to be used in solving that problem. There may be several different laws or theories of recovery which can be used with the same set of facts with all being tried at the same time. After this document is filed with the court, the court issues a “citation” and the opposing party will be personally served with the petition or complaint and a citation – a notice to “appear” in court by a certain date.  The required  “appearance” is sometimes a personal appearance and other times only requires the filing of an answer.  The filer will be known as the Plaintiff or Petitioner and the other will be the Defendant or Respondent, depending on the court.

After service has been completed, the one served must then file an Answer with the court. Normally the answer just says, “I deny everything . Prove everything.” However,  there are times when the answer can assert an affirmative defense, such as saying: “I had a perfect right to do what I did.”

The time between the filing of an Answer and trial, is time for each side to learn the case from the other side’s perspective. This is done through “Discovery.” Discovery consists of several formal types of documents being: Requests for Disclosure, Request for Production, Request for Admissions, Interrogatories and Depositions. The court system has worked hard to abolish the trial by ambush and to allow all of the parties to know all of the facts before the case goes to trial. If you have been asked for something and do not give it to the other side, you cannot then use it at trial.  The days of “gotcha” are gone.

At some point before the trial, either side or the court can suggest mediation. Mediation is mandatory in many courts relative to certain types of cases. If you are going to have a jury, almost every court will mandate that you go to mediation before you call on the public to settle your problems. You don’t have to settle, and nothing said in the mediation can be used in court. The third party, known as the mediator, will simply try to determine if there is some common ground upon which  the parties can resolve some, if not all, of their disagreements the subject of the lawsuit. If there is no settlement, then the trial will go forward with either the judge or the jury deciding the fate of the parties.

 The trial can be either to the judge or to a jury. Under either method, there is a strict set of rules relative to the offer of proof.  Not all evidence offered  is allowed. Sometimes facts which the civilians believe are critical can be totally irrelevant under the law and the evidence will not be permitted to come in. Some types of irrelevant evidence can be: insurance payments for hospital bills in an accident case, the income of a second spouse when trying to readjust child support, or that a second spouse spent all of the money the first spouse earned instead of leaving it to the children during battle over the validity of a deceased person’s Will.

After all of the evidence has been presented, Plaintiff going first and Defendant going second, the first thing done is the issues of fact are resolved. This is done exclusively by the jury if there is one, or by the judge if not. After the facts have been decided, the judge then applies the law to the facts as decided. This decision then becomes the judgment of the court.

Usually there is a winner and a loser at this point in time. The loser can appeal to the appeals court as a matter of right. The appeals courts will look to see if there was a mistake in applying the law at any of the various levels during the case. The one thing the appeals court will not do is to look at additional evidence, or to overrule the decision of the jury unless there was absolutely no evidence to support their finding. The appeals courts are a true battle of paper where, on rare occasions, the attorneys are invited to discuss their case with the court and are usually given twenty (20) minutes each to explain their side. About one (1) in ten (10) cases is reversed, meaning that nine (9) out of ten (10) judgments of the lower courts are upheld.

 If you do not like the appeals court’s decision, you may ask the Supreme Court (Texas or US) for the right to have them consider the case. There is no “right” to be considered. It is by invitation only. The odds of having a case heard by one of the Supreme Courts are very, very slim. As an example, only between 70-80 cases per year are considered by the United States Supreme Court out of the thousands and thousands of both civil and criminal cases filed in the federal system each year.


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