II. Legal Procedure Articles

THE 1-2-3-4 OF CIVIL LAWSUITS

THE STATUTE OF LIMITATIONS

Different types of legal matters have different time limits for filing a lawsuit. As a general rule, a lawsuit filed after the legal time limit for that type of lawsuit will be dismissed by the Court, even if the facts supporting the lawsuit are completely true. After the lawsuit is filed, the time limit stops running, even if the lawsuit is not tried or settled until after the time limit.

Here are the statutory time limits for filing many common types of lawsuit:

One Year Limitation Period - Libel, Slander, Malicious Prosecution, Breach of Promise of Marriage, Suit to set aside Sale of Property seized under the Tax Code:

Two Year Limitation Period - Personal Injury Actions (any type of physical harm including a car wreck, malpractice, slip and fall, on the job injury, product liability, wrongful death case, etc.) Actions for Deceptive Trade Practices, Injuries to Property or Holding Property Wrongfully (property damage, conversion of personal property, taking and detaining personal property, forcible detainer against a tenant, etc.)

Four Year Limitation Period - Contract Actions, Suit to Collect a Debt (including credit cards), Fraud, Breach of a Fiduciary Duty, Breach of Express or Implied Warranty, Credit Accounts, etc.

The limitation period for law suits related to the ownership or possession of real estate can run any where from three years to twenty-five years, depending on the facts (See Texas Civil Remedies Code, Sections 16.021 to 16.037).

There are even limitation periods for criminal offenses in Texas - Two years to file an information or indict for all misdemeanors and anywhere from three years to ten years (depending on the offense) to indict for felonies, except murder and certain sexual assaults which have no time limit.

These straight forward time limits are highly complicated by numerous technical rules and exceptions that control when the time starts running or may be stopped or even extended. Even if you are not ready to hire a lawyer or do not think that you will need a lawyer, the safe and smart thing to do is to contact a lawyer to find out what the time limit will be under your fact situation just as soon as you realize or suspect that you may have a case.

Do You Need An Attorney?

There are certain basic requirements that must be met before a person can win a civil (everything but criminal) lawsuit.

A person who files a lawsuit has the "burden of proof". This means that they must be able to prove the facts of their lawsuit by a preponderance of the evidence. Facts that merely show that something could have happened or is possible are not good enough. As the saying goes, close only counts in horseshoes and hand grenades. You must be able to show that your version of the facts is more likely to be true than not true or has at least a 51% probability of being true.

In addition, you generally must be able to prove four basic fact elements by this preponderance or 51% probability to have a successful lawsuit:

1. What the guilty party did or did not do (hit my car, failed to diagnose, failed to warn, failed to provide safety equipment, didn't pay, etc.);

2. That what the guilty party did was wrong somehow (violation of traffic or safety statute, medical negligence, violation of OSHA, breach of contract, etc.);

3. That the wrongful act of the guilty party was a contributing factor in causing legal damages to you (it does not have to be the only cause or factor, but it is best if it is the primary cause);

4. You must be able to prove the past damages or probable future damages with this preponderance or 51% likelihood so that the judge or jury can estimate the amount of money damages that should be paid by the guilty party or his insurance company.

Finally, you must look at whether or not the guilty party has insurance or other assets to pay a judgment for damages. Most civil lawsuits for injuries involve insurance because most non-corporate guilty parties are financially unable to pay damages. They can avoid paying a judgment by merely filing bankruptcy or claiming the homestead exemption (in Texas, even wages are exempt).

If any of these fact elements are missing or cannot be proved, you will not have a successful lawsuit. It is like a high hurdle race. If you trip on even one hurdle, you fall down and get nothing.

DO I HAVE A LAWSUIT?

There are certain basic requirements that must be met before a person has grounds to file a civil lawsuit. A person who files a lawsuit has the "burden of proof". This means that they must be able to prove the facts of their lawsuit by a preponderance of the evidence. Facts that merely show that something could have happened or is possible are not good enough. You must be able to show that your version of the facts is more likely to be true than not or has at least a 51% probability of being true.

In addition, you generally must be able to prove four basic elements by this preponderance or probability to have a lawsuit:

1. What the guilty party did or did not do. (Hit my car, failed to diagnose, failed to warn, etc.);
2. That what the guilty party did was wrong somehow. (Traffic violation, medical negligence, violation of statute, etc.)

3. That the wrongful act of the guilty party was a contributing factor in causing legal damages to you. (It does not have to be the only factor and can be only one of many contributing factors.);

4. You must be able to prove the past effect or probable future effect with this preponderance or likelihood so that the judge or jury can estimate the amount of money damages that should be paid by the guilty party or his insurance company.

Finally, you must look at whether or not the guilty party has insurance or other assets to pay a judgment for damages. Most lawsuits involve insurance because most individual guilty parties are financially unable to pay damages. They can avoid paying a judgment by merely filing bankruptcy or claiming the homestead exemption. (In Texas, even wages are exempt.)

If any of these elements is missing or cannot be proved, you do not have a lawsuit.

HOW THE JURY IS SELECTED

Many people wonder why they were or were not selected to sit on a jury. The lawyers are not allowed to pick which people will sit on the jury. Instead, the lawyers decide which people will not sit on the jury. For example, the lawyer for each side in an injury case is allowed to dismiss six people from the jury for any reason they please. In addition, any juror who states clearly that he or she has such definite feeling about the law involved or the type of case that it would interfere with their ability to make a fair and impartial decision in that particular case is not allowed to sit on that jury.

The people who sit on the jury are the first twelve people left over after the judge dismisses those who already have a definite opinion or feeling about the law or type of case and after each lawyer has used his six strikes or challenges.

The lawyers are allowed to ask potential jurors questions about their past experiences, beliefs, attitudes, or any thing else that the lawyer can think to ask that may give a clue as to what the true feeling of the person is towards that particular case. In addition, the lawyers have all of the information on the juror information cards that you fill out when you come in for jury service. From this information the lawyers for both sides decide which people they will dismiss from jury service.

It sometimes seems that the more honest people are about their true feelings or opinions about the type of case or the law, the more likely that one side or the other will dismiss them from serving. And the person who is dishonest or refuses to tell the lawyers about their true feelings and opinions is most likely to end up on the jury.

If the jury is going to be made up of truly impartial and fair jurors, potential jurors must give honest and truthful answers when asked about their opinions and feelings.

HOW TO FIND A QUALIFIED LAWYER

The State Bar of Texas has provided a program to certify that a lawyer is qualified by actual trial experience and knowledge to practice as a specialist in certain areas of the law. A lawyer who is "Board Certified" in a specialty area of law has at least five years experience in that field, been certified by judges and other lawyers as being knowledgeable in that field, spends at least 25% of his time in that field of practice, actually tried a required number of trials in that field, has passed a rigorous written exam, and has proven that he or she has the required amount of trial experience to practice as a specialist in that area.
Many routine legal matters can be handled very capably by a non-specialist. However, if the damages are serious, such as a long term/permanent injury or death, or the outcome is very important, such as the custody of a child, or the matter is very complex such as a tax problem, you may want to hire a specialist.

For example, a lawyer who is Board Certified in Personal Injury Trial Law should be a highly qualified specialist in most types of cases involving injuries or death. The injury specialist should have extensive knowledge of insurance law, injury law, evidence and trial procedure law, and trial psychology. In addition, an injury specialist must have medical knowledge to understand and explain the injury, economic/accounting knowledge to understand and explain the damages, and engineering knowledge to understand and explain how the injury occurred.

The types of law in which a lawyer can be a board certified specialist are Criminal Law, Labor Law, Family Law, Estate Planning and Probate Law, Civil Trial Law, Personal Injury Trial Law, Immigration and Nationality Law, Real Estate Law, Tax Law, Bankruptcy Law, Oil, Gas, and Mineral Law, Civil Appellate Law, Administrative Law, and Consumer Trial Law. The lawyers who are Board Certified Specialists are listed at the end of the attorney section in the yellow pages by specialty.

WHY THE JURY IS NOT TOLD ABOUT INSURANCE

The Texas Supreme Court has ruled for many years that the jury is not allowed to know that the guilty party or an injured person has insurance. The jury is not even supposed to know that the guilty party's insurance company pays for the guilty party's defense lawyer and pays all of the guilty party's expenses. (The injured person has to pay his own lawyer and expenses.)

As a practical matter almost all lawsuits that are filed for injuries involve insurance benefits of either the guilty party or the injured person. This is because of the fact that most guilty parties who cause injuries are financially unable to pay a judgment and can avoid paying a judgment by merely filing bankruptcy or claiming a homestead exemption (in Texas even wages are exempt).

The Supreme Court has also ruled an injured party cannot sue the guilty party's insurance company directly. Because of these rules, an injured person is forced to sue the guilty party even when he is only trying to recover insurance benefits.

The Supreme Court has stated repeatedly that it is afraid the jury might give larger or smaller amounts of damages if the jury knows either party has insurance. The jury is even prohibited by the Court from discussing insurance among themselves in the jury room. If anyone breaks this rule, the judge grants a new trial.
However, most jurors will tell you after a trial that they knew all along that the guilty party's insurance company would pay for the damages and the guilty party's lawyer but that they did not let this affect their decision. Texas jurors are a lot smarter than the Supreme Court gives them credit for being.

DO I NEED A LAWYER?

If you have sustained minor injuries and you are certain that you are well and that the injuries will not last long and will not cause you future problems, you may not need a lawyer. Most insurance companies will readily pay past medical expenses and past lost earnings when the accident is not your fault.

However, they are very resistant to paying future medical expenses or future lost earnings. Remember, an injury victim must collect all of his damages, including all future damages such as future medical expenses, in one trial or settlement.

If you have been injured seriously enough to be disabled from performing your normal duties without discomfort, an experienced lawyer may be very helpful to you. Insurance companies have staff attorneys advising them. Also adjusters have been trained to understand the legal implications of an accident. The information you give the adjuster may be used against you to deny or reduce your recovery. Before giving statements or medical authorizations to the other person's adjuster, consideration should be given to seeking an attorney's advice to protect your rights.

When you consult an attorney early, the attorney has a better chance of making a successful investigation. If you want legal advice, be sure and consult with an attorney who is experienced in the area of law involved.


THE ONE SATISFACTION RULE

It is important for a jury to find the full amount of damages shown by the evidence and not attempt to make any adjustments because they believe the injured person may have other benefits available. The law generally makes these adjustments anyway.

For example, active duty military and their dependents have medical benefits provided at military hospitals and clinics. However, if someone in the Army or their family is injured in a car wreck and collects money from the guilty party or his insurance, then federal law requires the government to be reimbursed for all money for medical care provided by the government. The injured party is not entitled to any part of the money until the government is repaid. The same rule applies if injured persons receive Medicaid or care from a V.A. hospital. Taxpayers like this rule.

If a worker is hurt in a car wreck while on the job and is able to collect money damages from the guilty party or the guilty party's insurance, then all of the workers comp and medical benefits must be repaid before the worker can keep any of the money. Employers like this rule.

Major medical insurance, group health insurance plans and HMO's also require an injured person to repay in full any medical benefits received if any money is collected from the guilty party.

As you can see from these few examples, a jury that finds less than the full amount of damages shown by the evidence may create a serious injustice since the law will adjust the verdict a second time. Unfortunately, the Texas rules of evidence do not allow the jury to be told about these rules during the trial.

THE OLD LAW

The tradition of dividing the law between Civil Law and Criminal Law has a long history that goes all the way back to biblical times. In Jesus= time, disputes dealing with accidental injury cases (torts), business disputes, or boundary disputes were handled by the church courts. Legal matters dealing with keeping the peace and administering the nation (murder, assault, theft, treason, or paying taxes) were handled by the king's court or the government courts.

In some cases, just like today, there was an overlap between the two separate systems. For example, if a man wrongly took your sheep, you had the right to go to the religious court and ask that the sheep be returned. If the sheep were returned unharmed, that was the end of the dispute. But if the sheep had been sold or slaughtered before they were ordered to be returned, then you were entitled to four sheep for every sheep wrongfully sold or killed (like punitive damages today, Exodus 22:1). If your sheep were taken, you also had the option of going to the government courts and asking that the thief be physically punished or put to death. (This is why the Chief Priest ordered Jesus taken to Pontius Pilate. The priests wanted Jesus killed, but only the Roman Governor had the authority to order someone put to death.)

Under Hebrew Law, a citizen who was injured because of the acts of another had the right to recover damages in the church courts. This right is given under the famous A . . .life for a life, eye for an eye, tooth for a tooth, . . . passage found in Exodus 21. (Many uneducated people have twisted this passage and used it out of context as an excuse for revenge.) Under Hebrew Law, Exodus 21 and 22 (sometimes called The Judgments) are legal examples and legal principles to be broadly applied to all Civil Law type cases.

In Jesus' time, a citizen who lost an eye because of the act of another had the right to recover the value of an eye for an eye. This included medical expenses, lost wages, pain and suffering, disfigurement, and his inconvenience (similar to our mental anguish damages today). One of the ironies of today's politics is that many of the same religious groups who claim to interpret the Bible literally are working hand in hand with insurance companies and big business to take away or limit the rights given to individuals in the Old Testament.

WHAT ABOUT CONTINGENCY ATTORNEY FEES?

Attorney fees in injury cases are almost always based on a contingency fee contract. This is because working people cannot afford to pay a lawyer out of their own pocket. A contingency fee contract usually provides that your lawyer will pay the expenses of preparing your claims for settlement or a trial. If the lawyer does not win or settle the case, he gets nothing and usually loses the expenses he has put into the case. For example, preparing a simple automobile injury case for trial usually costs a lawyer between $2,500 to $5,000 out of his pocket. A medical malpractice case could easily cost a lawyer from $75,000 to $100,000 out of his pocket.

The most expensive cost the lawyer must pay is almost always the medical testimony. Doctors usually charge from $300 to $1,500 per hour (ex: surgeons are more expensive) to give a sworn deposition that can be used at trial. The cost of a court reporter or video operator to record the testimony is extra. (Doctors who appear live at trial often charge for a whole day, usually $5,000 to $10,000 per day. Nowadays doctors are seldom asked to testify live at trial because of the cost.)

If the claim is successfully collected, the lawyer will get the expenses back and a percentage of the settlement or judgment in attorney fees. The percentage varies depending on factors such as how difficult or risky the case is, what type of case is involved, and how much money must be invested by the lawyer to get the case ready. The standard percentage on an automobile collision in Texas (and most other states) is one-third, although some are now charging 40%.

If you have a minor, short term injury, you may be able to settle your claim for about the same without a lawyer as with a lawyer. However, if you have serious or long term injuries, an experienced injury lawyer can usually get you more than you can get without a lawyer, even after deducting expenses and attorney's fees. This is because the lawyer knows how to document and collect your future damages also.
When you hire a lawyer on an injury case, you should insist on a written employment contract that clearly states how the fee will be calculated and how case development expenses will be handled. The contract should also state how referrals to trial specialists will be handled.