Lawsuits – Not as Seen on TV by Ryan T. Webster

Lawsuits – Not as Seen on TV

Often people’s perspectives of the litigation process are shaped by TV. Although the entertainment industry does a great job of entertaining us with legal drama, it is rarely accurate. One notable difference between TV and reality is that TV lawyers get hired by a client and try her case in a single episode, which may cover just a few days’ time. In reality, the process can take years. The cost vs. benefit, time, and stress of litigation are not shown on TV. These are important factors to consider when facing litigation.

This article offers a behind the scenes glimpse at the real civil litigation process. The statements in this article are not legal advice nor are they comprehensive or applicable to every case or every person.

In a civil lawsuit, there are at least two parties. The plaintiff is the party that brings the lawsuit. The defendant is the party being sued.

In certain types of cases, such as deceptive trade practices, the would-be plaintiff is supposed to send a written demand to the would-be defendant before filing a lawsuit. The demand usually summarizes the plaintiff’s legal and factual allegations and requests the desired relief. A party may have up to sixty days to respond to a demand. If the parties cannot resolve their dispute informally, filing suit is usually the next step.

The document that is filed to initiate a lawsuit in Texas courts is called a petition. In preparing a petition, lawyers may spend hours or weeks gathering information about the facts of the case and researching applicable law. The defendant must be served with the petition before the case can proceed. After a defendant is served, he must file an answer or another applicable response with the court clerk by the applicable deadline. If the defendant fails to timely respond, the plaintiff may take a default judgment — meaning she wins because the defendant failed to timely participate.

After the defendant answers, the parties usually engage in discovery. The discovery process allows each party to gather information that is relevant to the case from the other party and from nonparties. Parties may discover information that provides a basis to bring new claims, which in turn may allow for additional discovery. Discovery disputes sometimes arise, involving the relevance of the information sought, protecting confidential information (e.g. trade secrets, etc.) and other issues. Discovery is one of the most time-consuming phases of litigation — taking months or even years to complete.

During the course of a lawsuit, there may be numerous motions filed on a variety of issues. Each motion and hearing may take days, weeks, or months to prepare and present.

Although settlement is rarely featured in legal shows, most cases are resolved through the mediation process or by informal settlement talks between attorneys. Lawsuits settle at all stages of the litigation process.

If a case does not settle before its trial date, a judge or jury will decide the case (subject to appeal). Getting to trial usually takes a year or more. This is due in part to allow lawyers time to develop and evaluate their case; courts being backed up because there are not enough of them to handle the influx of cases filed; and the scheduling issues that have to be worked out among the parties, attorneys, courts, and witnesses.

Just before trial, courts may hear various pre-trial motions. Potential jurors are then let in the courtroom and a jury is selected. The lawyers then make their opening statements giving a roadway of the evidence they believe will be presented. After opening statements, each party may put on evidence through witnesses and exhibits (e.g. documents, photographs, and other tangible items). The parties rest after putting on their evidence. The judge reads the charge (instructions and questions) to the jury. The lawyers then make closing arguments. Following further instruction from the judge, the jury will then leave the courtroom to deliberate and answer the questions presented to them in the jury charge. The judge reads the jury’s verdict and converts it to a final judgment. That judgment becomes final if not timely appealed or otherwise successfully challenged.

In summary, TV shows start by revealing the client’s problem, skip the hard work, and end with a dramatic trial where the bad guy is exposed beyond all doubt. In reality, there is not a smoking gun in most cases—it’s more of a connect the dots to see the picture approach.

 

Ryan Webster can be reached at 940-891-0003 or www.dentonlaw.com.

 

CAR WRECKS AND CONTRIBUTORY NEGLIGENCE by Brian T. Cartwright

Most people who are involved in an automobile accident can easily blame the other driver as being responsible for the collision. What many of these people don’t realize is that the other driver will try to blame them for the wreck, either in whole or in part–claiming what is commonly known as contributory negligence. When this happens, a jury will be asked to sort out who they believe was at fault, either in whole or in part, and then, if both parties are believed to be at fault, the jury will then assign a percentage of responsibility to each driver. For example, let’s say that the jury found the defendant was negligent because he pulled in front of you without warning while trying to get into a restaurant parking lot; but the jury also found you liable because you were trying to find a radio station to listen to which prevented you from acting sooner to avoid the wreck. In this scenario, the jury would then be asked to assign a percentage of responsibility to each of you. Why is this important? Because the percentage of liability that the jury assigns to you will reduce any damages awarded to you by that percentage (if 50% or less); or completely bar your ability to recover damages (if the jury finds you 51% or more responsible for the wreck). For example, if a jury found the defendant driver 60% responsible and you 40% responsible, and awarded $100.00 in damages, then your $100.00 recovery would be reduced by 40%, meaning you would only get $60. Conversely, if the jury found you 60% responsible and the defendant driver 40% responsible, you would not recover anything because the jury found you 51% or more responsible for the wreck. All of this can get rather confusing so the bottom line is do not put off consulting with a qualified personal injury trial attorney to assist you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog does not address cases involving multiple defendants. This is a separate beast which is better discussed in a consultation. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

HEARSAY, A BRIEF HISTORY By Samuel B. Burke

Most everyone has heard of hearsay. No rule of evidence is so more recognized in popular culture. Rarely is a trial conducted in this country when at least once if not on multiple occasions a lawyer will rise to say, “Objection hearsay.” Generally, a hearsay rule prevents a witness from testifying about what a third party said in order to prove the truth of that out of court statement. It has been said that a juror should be like a blank sheet of paper, know neither plaintiff nor defendant, but judge of the case only upon the evidence produced before him. Borrowing from this metaphor, the hearsay rule limits what may be written on that piece of paper. Although the ideas of jurors as blank slates and the hearsay rule are relatively modern, the roots of hearsay reach back to Roman times. A cousin to the hearsay rule, the right to confront witnesses is contained in the United States Constitution. The Confrontation Claus of the Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Generally, the right allows an accused to have a face-to-face confrontation with witnesses who are offering testimonial evidence against them in the form of cross-examination during a trial. The right only applies to criminal prosecutions, not civil cases. The Confrontation Clause has its roots in both English common law and Roman law. In noting the right’s long history, the United States Supreme Court has cited Acts of the Apostles 25:16, which reports the Roman governor Porcius Festus, discussing the proper treatment of his prisoner Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.” It is also cited to Shakespeare’s Richard II, when Richard, who set himself up and judge and jury over a dispute, says “Then call them to our presence. Fact to Face and frowning brow to brow, ourselves will hear the accuser and the accused freely speak”. The history of the hearsay rule is not quite so ancient. Writing in a Harvard Law review article published in May, 1904, J. H. Wigmore wrote, “[t]he history of the hearsay rule, as a distinct and living idea, [began] only in the 1500s and it [did] not gain complete development and final precision until the early 1700s.” Beginning in the later 1400s, the development of the jury trial, with witnesses testifying about the facts of a particular case was an important factor in the development of the hearsay rule. Interesting, it appears that prior to the later 1400s juries conducted their own investigations in civil cases. Toward the end of the Middle Ages, the function of the jury transformed from persons who were active investigators that had knowledge of the case to our present day juries who are passive triers of fact with no prior knowledge of the case presented. By the 1500s, testimony of witnesses in open court was becoming the main, thought not exclusive source of proof. During this time statements were received into evidence, but the reliability of hearsay statements was beginning to be questioned as “a tale of a tale” and “a story out of another man’s mouth. In the trial of Sir Walter Raleigh for treason in 1603, the primary evidence against him was a sworn “confession” of Lord Cobham, Raleigh’s alleged co-conspirator. Raleigh alleged that Cobham had recanted. Raleigh objected to the admission of this hearsay statement and demanded that Cobham, who was being held in the Tower of London where the trial was being held, be bought to court to testify. Raleigh’s objection was ignored and he was convicted and later executed. His conviction and execution may have helped fuel outcry against the reliance on hearsay in criminal prosecutions. During this period use of witness hearsay statements, both oral and written, including sworn statements, as was the custom in civil law systems, was becoming increasingly criticized and the reliability of such statement was increasingly questioned. One factor that may have also played a role in the development of the hearsay rule was the failure of the English system to develop a system of proof comparable to the two witnesses rule found in civil and canon law systems. From the 1600’s through the 1800’s the rule developed slowly. At first, hearsay was to fully excluded. Hearsay could be received in confirm or corroboration other evidence, though it was not independently admissible. Although the precise timing and reasons for the hearsay rule can never be completely unknown, the rule became universally accepted in the English and American legal system by the mid to late 1800s. Much has been written about the purpose of the hearsay rule. Some commentators have suggested that its purpose is to support the modern jury trial process, ensuring the parties’ right to cross-examination and confrontation. Other scholars have suggested its intended purpose is to ensure the acceptability of a verdict; control highly adversary procedures and unchecked fact-finders; or contribute the justing, protect competitive advantage and limit judicial discretion. The modern rule of hearsay has been exceptions. Most developed in common law every decades if not longer. Generally, these exceptions are tied to some corroborating factor or factors that support the reliability of the statement. Scholars may argue about how the precise development or purpose of the hearsay rule and the ideals it protects; regardless, the hearsay rule is clearly supported by worthy ideals that have withstood the test of time.