Archives for posts with tag: lawsuits

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.

 

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Getting along Our economy has changed a great deal over the past several decades, and today most people work in a service industry. These businesses deliver services to customers or clients with whom they create and maintain relationships. In those relationships, the business usually solves some problem for the customer. When a business’s essential function is solving problems, you would expect those businesses who are the least effective problem solvers to be the ones who get sued. However, failing to solve a customer’s problem is only one of the ingredients that leads to a lawsuit. Surprisingly, error rate alone is not a very good indicator of which businesses are likely to get sued and which are not.

When people get sued they will almost always ask themselves, why did this happen to me? There are many reasons lawsuits get filed. The person who has been sued may not have been able to control the circumstances that led to the suit. However, a significant cause of litigation may be easily controllable.

In his book Blink, Malcolm Gladwell writes about the observations of Alice Burkin, a medical malpractice lawyer. Ms. Burkin is quoted as saying “In all the years I have been in business, I’ve never had a potential client walk in and say, I really like this doctor, and I feel terrible about doing it, but I want to sue them.” In fact, Ms. Burkin’s clients had flatly refused to sue doctors they liked even when confronted with evidence that their injuries were that doctor’s fault.

Most lawsuits start with a call to a lawyer’s office. What precedes most of those calls is a relationship that is no longer working. A study of medical malpractice suits showed that the difference between doctors who had never been sued and those that had been sued multiple times was roughly three and a half minutes. That’s the difference in the amount of time the doctors who had never been sued (18.3 minutes per visit on average) spent with their patients versus the amount of time the doctors who had been sued on multiple occasions had spent with their patients (15 minutes per visit on average). What was happening during that time? According to the study, not much related to health care. Instead, the physicians were using that time to set expectations and to build a personal relationship with the patient.

For example, the physicians who had not been sued used orienting comments like “First, I’ll examine you then we’ll talk about your problem” or “l’ll leave time for your questions.” Also, the physicians that had not been sued more often laughed and made small talk with their patients during the visit.

As part of your business’s risk management strategy, you should consider the following: 1) Set clear expectations with customers/clients when starting a communication, 2) Make time to ensure that you have answered all of their questions (even ones that may have occurred to them during the call or meeting), and 3) Take the time to talk to customers about how they are, and laugh and joke with them when appropriate. Show some interest in their personal lives and not only the commercial transaction in which you are involved. If you do these things, your customers will probably like you (or like you more). In general, people don’t sue people they like.

Everyone makes mistakes. Sometimes those mistakes don’t hurt anyone. But when they do, the difference between a lawsuit being filed against you or not could be as little as three and a half minutes.

Samuel B. Burke is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Sam can be reached at sburke@dentonlaw.com or http://www.dentonlaw.com.

Sellers Disclosures

With the economy beginning to pick up, new housing starts and sales of existing homes seem to be on the upswing as well.  It is important to know what duties the seller has in disclosing the physical condition of a home, and to what extent a buyer may rely upon such disclosures in purchasing real property.  Depending on the type of property being sold, commercial, residential, farm & ranch, unimproved, etc…., the required disclosures vary to some extent.  This article will solely focus on the required disclosures involved in the sale of residential real estate.

“Residential real estate” is defined as a single dwelling unit of residential real property located in Texas.  Section 5.008 of the Texas Property Code governs a seller’s duty to disclose the condition of residential real estate.  You may review the promulgated disclosure form on the Contract Forms tab of the Texas Real Estate Commissioner’s website found at http://www.trec.state.tx.us.

The disclosures required by Section 5.008, include (1) the presence and condition of equipment, fixtures and improvements; (2) the presence or absence of working smoke detectors; (3) defects in walls, foundations, plumbing, electrical, or other major components of the property, including “structural” components; (4) potential problems with termite damage, flooding, aluminum wiring, asbestos, or lead-based paint; (5) whether any item, equipment, or system is in need of repair; and (6) other items affecting the property such as alterations or repairs made without permits or non-compliance with codes, deed restrictions, common areas, and lawsuits.

For “lawsuits”, Section 5.008 only requires the disclosure of “pending” lawsuits at the time the disclosure is made, and does not require disclosure of previous suits which have been dismissed, settled, or completed through final judgment.

Disclosure of “structural” repairs includes any repairs performed to the load-bearing portion of a residence, and includes the foundation, walls, and roof. Repairs to cabinets, sinks, bathroom fixtures, and drywall not caused by a failure in the structural portion of the residence are not required to be disclosed as “structural” repairs.  Other areas of Section 5.008 may require the disclosure of repairs for those items.

A seller is not required to disclose to a potential buyer any deaths on the property that are unrelated to a physical condition associated with the property, or AIDS or HIV-related health problems of previous occupants.

The seller’s disclosure notice must be completed to the best of the seller’s knowledge and belief as of the date of completion and signature.  If there are items, components, or repairs which are not known by the seller on that date and time, the seller must indicate that fact.  There is no legal obligation of a seller to conduct an investigation into matters of which the seller has no knowledge nor any continuing obligation to disclose matters that are later discovered.  Also, a seller’s disclosure notice is not a warranty or guarantee by the seller of the physical condition of the property or dwelling.

However, particular attention should be paid to the form of the disclosure notice being used.  Some residential real estate sales contracts promulgated by real estate trade associations may include disclosures which go beyond those required by Section 5.008.  It is important to read each form of disclosure closely and make sure that each response is true and correct at the time and date such is being made.  Although not required by law, supporting documentation of any disclosed defect or repair may assist the seller in later defending against allegations of misrepresentation or deceptive trade practices.

Also, unless the real estate agent or broker has actual knowledge of a misrepresentation contained in the seller’s disclosure notice and fails to bring such to the attention of the buyer or the buyer’s agent, a seller’s real estate agent or broker is not legally responsible for any misrepresentations made by the seller in its disclosure notice.

Certain types of residential real estate sales transactions are exempted from providing a disclosure notice.  These include (1) court ordered sales; (2) transfers by a bankruptcy trustee; (3) deeds in lieu of foreclosure; (4) judicial and non-judicial foreclosure sales; (5) sales by a fiduciary or administrator of a decedent’s estate, guardianship, conservatorship, or trust; (6) transfers between co-owners; (7) transfers to a spouse or heir; (8) transfers incident to a divorce; (9) transfers to or from a governmental entity; (10) new residences which have not been previously occupied; and (11) where the value of the dwelling does not exceed five percent of the value of the property.

Finally, where a seller fails to provide a disclosure notice to a buyer, the buyer’s sole remedy is to terminate the contract for any reason within seven days from buyer’s receipt of the notice.

R. Scott Alagood is board certified by the Texas Board of Legal Specialization in both Commercial and Residential Real Estate Law and may be reached at alagood@dentonlaw.com or www.dentonlaw.com.

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