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“What happens when my company gets sued or needs to sue?”: The mechanics of pre-trial litigation. (Part 2)

On Behalf of | Mar 20, 2018 | Business, Firm News, Law

After assessing venue, Holmes PLLC next discusses with each client the mechanics of the lawsuit it faces, or must file.

Petitions and Answers.

Lawsuits begin with “petitions” in Texas courts (and “complaints” or “petitions” in other jurisdictions) and “citations” (often called “summonses” in other jurisdictions). For decades the lawyers and judges who write the rules of procedure have facilitated the drafting and filing of petitions – petitions can and should be written in plain English, and they merely provide notice of claims (and not the nitty-gritty details underlying each claim) They are relatively inexpensive to file, costing just a few hundred dollars.

1910 Harris County Courthouse in downtown Houston

1910 Harris County Courthouse in downtown Houston

Petitions should alert a client of Holmes PLLC of something like the following: “I the plaintiff believe that you failed to do whatever you were supposed to do under our contract” or “you made a lousy refrigerator that shocked me badly and put me in the hospital.” Neither of the foregoing statements contains strong, precise English – or reveals many details. In all likelihood, however, either statement would enable the plaintiff to have its day in court before a jury, provided it could show factual support for the statement. The easy pleading standards that govern petitions are called “notice pleading.” Citations/summonses are served on registered agents for service for defendants, or on the defendants personally. This process formally alerts the defendants of their being sued.

Company plaintiffs or counter-plaintiffs must adhere to state law requirements that when they bring a lawsuit (or counter-claim in one) they must (a) register as a “foreign company” with that state’s secretary of state and (b) maintain a registered agent for service of process in the state (or identify such agent in another state). Until a company complies with these sorts of state-law requirements, it may not be able to bring a lawsuit in a given state or counter-claim in a lawsuit brought against it. These requirements are fairly easy hurdles to overcome and do not cost much money.

A defendant will respond to the petition with an “answer.” Notice pleading governs the answer, as it does the petition. The defendant in Texas can write one sentence denying everything the plaintiff states – e.g., “Defendant generally denies all statements in the petition.” Or, the defendant can provide detailed defenses like “plaintiff released the claims it now asserts,” “plaintiff and defendant do not have the special trust relationship that plaintiff has stated,” or “plaintiff was injured by his own fault.” None of the foregoing statements contains strong, precise English – or reveals many details – but each would likely enable a defendant to present its case at trial. Jurisdictions outside of Texas, and Texas federal courts, require a defendant to make various admissions and denials of plaintiff’s statements so that a defendant cannot provide a one-sentence answer. Finally, defendants frequently decided to bring counter-claims as part of their answers – “Defendant generally denies all statements in the petition and, moreover, believes that plaintiff failed to do whatever it was supposed to do under the parties’ contract.” Under a notice pleading jurisdiction like Texas, this inartful statement could enable a defendant to reach trial on its defense and contract-based counter-claim.

After the parties to a lawsuit assess the petition, the answer and any counter-claims, advanced legal training and skill enter the picture. By design, rules of procedure enable laypersons, with little to no legal training, to state their views on a lawsuit via the petition and answer. The same rules, however, immediately begin demanding legal expertise to advance the case towards trial.

Early pleadings in a lawsuit are analogous to self-prescribing medicine for a cold. A person with basic reasoning skills can do it. After the initial pleadings, the rest of the litigation process is analogous to diagnosing and treating bacterial meningitis (which may begin with cold-like symptoms, but can quickly kill a person). Only an qualified physician with years’ worth of training can do it. Business clients would do well to retain skilled, but affordable legal counsel like Holmes PLLC before progressing into a lawsuit. Advancing beyond the initial pleadings stage without capable legal counsel usually results in permanent damage to a client’s legal rights.

Initial Motions to Dismiss, Transfer or Abate.

Rules of procedure will enable either the plaintiff or the defendant to challenge the opponent’s pleadings. Plaintiffs may move to dismiss “as a matter of law” certain affirmative defenses in the defendant’s answer. Likewise, defendants may move to dismiss certain claims in the petition that do not exist under the law. Either side is saying to the other, “Although we live in a ‘notice pleading’ world, your pleading so misses the mark that the trial court should disallow it before the parties waste resources conducting discovery.” Holmes PLLC has the requisite legal skill and training to assess and, when appropriate, to make motions to dismiss. (The firm, of course, would use more-precise and thorough English than the layman’s example here.)

Rules of procedure will enable the defendant, in certain circumstances, to challenge a plaintiff’s venue selection and to move that a case be transferred to a different court in a different part of a state or in another state altogether. (Venue issues were discussed in the previous installment of this article.)

Rules of procedure will enable the defendant to “abate” a case until the plaintiff meets some legal requirement – such as registering with the state’s secretary of state. Often, defendants seek to abate cases while another legal proceeding in the same state, or in a different state, runs its course. Holmes PLLC routinely manages abatement arguments for its clients’ cases.


Discovery soon follows the initial motion practice. Discovery is very unique under the Anglo-American legal system – that is, the adversarial legal system the Americans inherited from England, but greatly adapted, especially in the 20th century. Anglo-American discovery differs greatly from pre-trial discovery in continental Europe, South America, Africa, Asia – in other words, the rest of the world except the parts that inherited the English legal system. For most of the world, judges or government administrators learn the facts underlying a legal dispute. Discovery in an American case, on the other hand, is “party-initiated and party-controlled.” In other words, private parties’ lawyers, rather than government officials or the judges themselves, will expend time and money to discover facts by way of depositions of key witnesses, expert involvement and conclusions, site inspections, physical examinations, and paper exchanges.

Discovery involves the parties’ attorneys requesting, via subpoenas, to learn their opponent’s documents and key testimony from witnesses. It involves also opposing unwarranted efforts to discover information that is irrelevant to a legal matter. Because Anglo-American discovery is party-initiated and party-controlled, discovery can become a war arising from the parties’ financial resources. For instance, a common defense strategy in business litigation is to force a plaintiff suing on a contract to reveal confidential, sensitive, or burdensome information before having its day in court. Such a defense may generate thousands of paper pages seeking a plaintiff’s confidential information, followed by several court hearings seeking the same. Holmes PLLC is skilled at minimizing this particular defense strategy. Early in the case, Holmes PLLC will educate the trial court on the basic case facts and legal issues at play – thereby educating the trial court on the proper scope of factual discovery for the case. Holmes PLLC also is skilled at resisting unwarranted “e-discovery” (i.e., discovery of e-mails, attachments to e-mails, electronic files and databases) or at seeking necessary e-discovery from the other side when doing so would reveal important, sensitive information.

Holmes PLLC abides by an old trial lawyer’s expression: “A plaintiff or a defendant in a lawsuit should not be forced to take his clothes off just to have his day in court.” The firm enforces this principle (literally and figuratively) for its clients.

Dispositive Motions, Such as Summary Judgment.

Dispositive motions like summary judgment motions soon follow discovery, or proceed concurrently with discovery.

Dispositive motions say, “Now that the parties know the facts and can better understand each other’s initial statements about the case, under the facts and law one side or the other simply must prevail – therefore, we don’t need a jury to decide the issue.” Dispositive motions tee up “as a matter of law” arguments for the trial court’s decision. A plaintiff may establish its claim as a matter of law. For instance, Holmes PLLC’s clients have won their contract claims as a matter of law when reasonable minds would have to conclude the contracts entitled the clients to relief. Likewise, a defendant may establish its defense as a matter of law. For instance, if a defendant obtained a pre-lawsuit “release of claims” from a plaintiff, and the plaintiff cannot nullify the release by proving fraud or duress, then the defendant may ask the trial court to enforce the release (and dismiss the plaintiff’s claims) as a matter of law.

Before the last 10 years, trial courts rarely if ever granted dispositive motions. In the past 10 years, and certainly in urban court systems, trial courts more often do grant such motions – at least against parts of a plaintiff’s case or parts of a defendant’s defense. Holmes PLLC specializes in moving for, and responding to, dispositive relief motions, such as summary judgment motions.

As this article has mentioned several times already, the appellate process is critically important to resolving most large legal disputes. Moving for summary judgment, or responding to such a motion, is the first true step towards appellate work. Although summary judgment motions and other dispositive motions do not generally preserve error for an appeal, they lay the groundwork for most arguments to come during the appeal. In fact, the majority of an appellate brief consists of the brief of the summary judgment motion or, at least, presents the same arguments as the summary-judgment briefing. Also, the summary judgment process prepares Holmes PLLC’s lawyers for preserving error for appeal, which a later installment of this article will explore.