FILING A LAWSUIT IN TEXAS – DO I HAVE A GOOD CASE?
A recurring question for clients is whether they have a good lawsuit for purposes of litigation in Texas, the Texaplex, and larger urban markets including Austin, San Antonio, Dallas, and Houston. Certainly, from the standpoint of being an aggrieved party, the clients are almost all convinced that they have a valid case that will invariably lead to victory. This is not always the case. Here are a few considerations to contemplate when deciding to spend legal dollars on a potential claim:
- Is my Texas claim actionable at court? This is always the key question involved in any dispute and it does take the experience of a seasoned attorney to provide a proper assessment and recommendation. It may appear to the client that there is a valid claim, but other issues could potentially impact that determination, for example, whether the statute of limitations has passed and there is no longer sufficient opportunity to even file a lawsuit. More specifically, if the potential claim is based on a contract, a thorough reading and understanding of the legal implications of the provisions are required before any determination to file can be made. It is not unusual that a client fails to review a contract in sufficient detail before executing and actually loses rights under the deal. There is no legal right to a contract attorney in Texas and if the other party gains an advantage in the contract, there is nothing improper about that. In other situations not involving a contract, the determination will be made based on what laws apply, for example, violations alleged in the employment arena. Bottom line is that clients have no idea about the strength or weakness of a potential case until a lawyer with experience can evaluate objectively and make a recommendation.
- Is there a procedural bar to filing a Texas lawsuit? What this means is that even if the client has a legal right to pursue a claim, there may be some contractual or legal obstacle that would forestall the initiation of such a filing. A client without a legal background would be unable to determine this and the case may seem better than it really is. An example would be a potential construction law claim by an aggrieved homebuyer against a builder for defective construction. In Texas, construction remedies are limited to consumers for residential construction under the Residential Construction Liability Act. The RCLA prevents a pick from a lawsuit being filed until certain preconditions take place which includes an exchange of documents between the homebuyer and homebuilder. If the buyer violates these provisions, he or she loses rights if litigation is pursued. Moreover, anything filed in court would get kicked out. Similar bars relate to cases where alleged notice must first be provided to the TWC in Texas or the Feds prior to any initiation of a lawsuit absent which it will be thrown out. Unfortunately, this is just the tip of the iceberg as to conditions precedent, as lawyers term it, which must be undertaken before a lawsuit is filed in court.
- What are the financial cost-benefit of the potential litigation in Texas, the TexaPlex, and the larger urban markets in Austin, San Antonio Dallas, and Houston? Lawyers invariably do a bad job on this. Clients have no idea what the financial cost of litigation could potentially be, nor should they. Typically, they have no concept of the complexity involved in pursuing litigation, the timeframe, the risk, and most importantly, the cost. A case could typically range from a few thousand dollars up to hundreds of thousands of dollars depending on complexity and other factors. The key here is that the client must always understand what the worst-case scenario would be in terms of cost so they can compare that against the potential benefit which would be the recovery of the claim amount and the legal cost to get there. Without providing this information to the client, there is no way any assessment can be made as to whether filing is a good option or a bad one. This is the typical quagmire that lawyers and clients run into in pursuing litigation. Lawyers definitely need to do a much better job on getting out what the cost could be even if there are possibilities of a faster less expensive resolution.
- Get a percentage probability assessment. Lawyers invariably do not provide this and understandably because nobody can forecast the future. That said, the Moster Law Firm will always provide a percentage probability assessment of success in any case based on our experience with that type of claim or situation. I think there’s some analogy to medicine and surgery as patients will invariably request and receive some probability of success or a mortality rate for a procedure. There is no reason why litigation attorneys can’t do the same thing. Obviously, no one dies in a civil lawsuit, to my knowledge, but the equivalent of death is the loss of the case.
- Possibility of a counterclaim. Almost all clients never consider that if they follow a lawsuit the defendant could assert a claim back against the plaintiff for considerable damages. This adds more uncertainty and potential exposure to any lawsuit. The problem with the counterclaim is that if the client decides to dismiss his or her own claim, the counterclaim survives and has its own independent existence. That is highly problematic and needs to be understood by any client before commencing litigation.
- Emotional cost. This is almost never discussed by law firms for whatever reason. By emotional cost, I mean the angst and energy drain caused by the pursuit of litigation. Once a lawsuit is filed in Texas, the Texaplex, and the larger urban markets in Austin, San Antonio, Dallas, and Houston, it becomes a highly emotional process on a daily basis for the client. Often times the clients are personally invested personally in the resolution which makes the whole process more difficult and attenuated. Certainly, if issues of reputation are involved at the inception, for example, defamation, the emotional aspects must be discussed in detail.
In conclusion, things are not always as they appear and that definitely applies to lawsuits. If you’re thinking about filing a lawsuit in Texas, the TexaPlex, and larger urban markets including Austin, San Antonio Dallas, and Houston, get a experience lawyers assessment before going down that path.