When You Are Sued

Sooner or later every Landlord will be sued.  It has become part of the cost of doing business as a Landlord.  But it doesn't have to be the end of your business.  Like all costs, it can be managed.

We have all heard and read about the lawsuit explosion and the litigation crisis. Most people think that it is interesting (and sometimes entertaining) until they are the one being sued. Let’s face it - NOBODY LIKES GETTING SUED. And you can bet that if you are in business long enough you will be sued.  It is not a question of "if", but rather "when."

But if you are sued, you need to know what you are facing and how the process works. Knowing what to expect will make an unpleasant experience bearable. The following is a brief outline of the stages of a lawsuit. While most of the steps will apply to most lawsuits, to get more detailed information, click here to contact us

SERVICE OF THE LAWSUIT.

Often, the first time you know you are being sued is when the man in uniform comes to your door to serve you with the lawsuit. I have had several clients call me when this uniformed stranger comes to their door and ask whether they should answer the door. In Texas, more often than not, it is a Constable. He (or she) is not there to arrest you. All they are doing is their duty to deliver to you a copy of the suit that has been filed. You should answer the door and accept the copy of the lawsuit.  NOTE: You may not be served by a constable.  Texas allows qualified private citizens, also known as "Process Servers" to serve lawsuits for a fee, so the person serving the lawsuit on you may not be in uniform; in any case, do not attempt to avoid service.

This is where many of my client's fall down.  How? THEY DO NOT CALL US!!!  

ANSWERING THE LAWSUIT

If the case is filed in County Court at Law or in District Court, you usually have until 10:00 a.m. of the next Monday after 20 days have passed.  By way of example, (look at the calendar below)  assuming you are served on the 5th, a Thursday, the passing of twenty days takes you until Wednesday,  the 25th.  Your WRITTEN answer is due before 10:00 a.m. on the next Monday.  In the case of this example, that would be before 10:00 a.m. on Monday the 30th.

PLEASE, PLEASE, PLEASE do not wait to send this lawsuit to us as soon as you receive it. The law books are literally full of cases where clients put the lawsuit aside and did nothing further.  Read on for the perils of such folly.

One final note:  if the lawsuit comes out of Small Claims Court or the Justice Court, instead of having to file a written answer on the Monday next following the expiration of 20 days, the time period is shortened to 10 days.  You must act very quickly in Small Claims court.  DO NOT WAIT!!!

INSURANCE

After you have forwarded the lawsuit to us, we will read it and find out what the lawsuit is based on. Depending on the facts claimed in the lawsuit, your insurance company might have a duty to defend you in the suit. If the suit is based on a car wreck, we'll call your insurance agent. If the suit claims that someone was injured on your property, we'll call your homeowner’s insurance company. If the claim is covered by your policy, the insurance company has a DUTY to defend you (at their expense). While this doesn’t make a lawsuit more fun, at least you won’t be facing the expense that is involved in the litigation process.

If the claim in the lawsuit is not covered by insurance (or if your insurance company denies coverage), you need to CALL US IMMEDIATELY!!!  I can help "convince" the insurance company they should cover you or otherwise threaten the insurance company to deal fairly with you under the Texas Insurance Code.

DISCOVERY

This is the most expensive part of litigation and is the portion of the litigation where your attorney makes the greatest difference.  If this phase is not managed properly the cost of the litigation can easily top the value of the controversy you are in litigation about. WE WORK VERY HARD to keep your case in perspective.  Generally, discovery is conducted in one (or all) of the following manners:

• Request for disclosures.  These requests ask for basic information about the lawsuit.  Things like the name and address of potential witnesses, the legal theories you are using to pursue or defend under, etc. This is usually the first form of discovery used by both sides.

• Interrogatories.  These are written questions you submit to the other side seeking answers to those questions you have not answered by the Requests for Disclosures.  They must be answered under oath.  The maximum number of questions that can be submitted is 25.

• Requests for Production.  This is the method used to acquire copies of the documents that are important to your case that are in the possession of someone else.  We usually number each page that we receive from the other side (a process known as "bate-stamping") so that the shenanigans are kept to a minimum, if you know what I mean.  These can also be used to inspect tangible objects that are important to your case.

• Request for Admissions.  These are requests that are sent to the other side asking them to admit or deny certain facts.  We use these extensively to narrow the issues that are actually the subject of the litigation.

• Depositions.  This is usually the best method of gathering evidence. This is the process where we send a notice or a subpoena for a witness in the litigation to give their testimony under oath and in the presence of a court reporter.  This is usually the most expensive aspect of the discovery process.  This is true because the court reporter charges 4.25 to 5.00 per page for their transcript.  An hour of testimony usually generates about 25 pages of transcript and can go as high as 35 pages of transcript.  Obviously, when considering my costs an all day deposition can be very expensive.

• Experts.  Your case may require the use of an expert to properly defend you.  In this event you can expect to pay between $2,500 to $25,000 just for the expert.  Simple matters are cheaper and utilize lower priced experts.  I have seen Surgeons acting as experts at a price of $1,000 per hour.  Needless to say, managing this aspect of your case is very important.  CHOOSE YOUR LAWYER CAREFULLY.

• Deposition on written questions.  This is the same process as an oral deposition except that the questions are submitted in writing and are answered in writing.  There is no chance to followup and this device is usually only used to obtain verification of business documents.

ALTERNATIVE DISPUTE RESOLUTION

We work very hard to resolve disputes before the costs get out of hand. The primary device we use to settle your case is known as mediation.  In mediation we will meet at the office of a mediator with the other side of the lawsuit.  The mediator then gives each party a chance to tell their story in what is known as an "opening session."  The litigants and their counsel will then separate into different rooms and the mediator will go back and forth between the parties attempting to find a resolution.  We have participated in mediations that have lasted one hour and in mediations that have gone on for three days.  We advocate settlement.  We run your litigation with an eye toward that day we will settle your case.  We have never had a client call us six months after their case settled and express disappointment that they settled their case.  NOT EVERY ATTORNEY IN DALLAS HAS THIS APPROACH!  If you intend to run a cost effective lawsuit, you better broach this subject with the lawyers you are interviewing and make sure you and your lawyer understand one another!

TRIAL

Clients want certainty about the date their case will go to trial.  Unfortunately, a quick trial in Dallas County is not possible.  Expect your trial to commence in 18 to 24 months after the lawsuit is filed. When the case is tried, each side will be given the opportunity to present their evidence and witnesses and cross-examine the other side’s witnesses.

JUDGMENT

After the case is tried, the Judge of the Court will enter Judgment for the winning party. The winner is entitled to recover any damages found, court costs and sometimes their attorney’s fees.

CONCLUSION

Being sued is no fun. But knowing what to expect and having experienced legal representation, can help you survive the process. ALL LAWYERS ARE NOT CREATED EQUAL!!!  Make absolutely certain that your lawyer understands the issues you are facing, including costs and other issues, like your policy for defending frivolous lawsuits. DO NOT HESITATE TO CALL US IF YOU HAVE ANY QUESTIONS.  DELAY WILL BE YOUR UNDOING AND WILL COST YOU MULTIPLES MORE THAN YOU WOULD SPEND IF YOU SIMPLY DEALT THE PROBLEM UP FRONT AND HEAD ON!!!

Email:  Darrell W. Cook

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