Many of my clients think that filing a lawsuit (also called “litigation”) means that the same as going to trial. Rather, filing suit is merely the beginning stage of actually going to trial. In fact, 95% (or more) of all lawsuits filed actually settle without going to trial. Nevertheless, the litigation process can be a drawn out and tedious process. In this series of articles, I will summarize a typical litigation case from filing suit through the actual trial.
Sometimes, your car accident or other personal injury case does not settle. That may be because the insurance adjuster has either denied fault in the case or has otherwise failed to make an acceptable offer of settlement. Likewise, you and your lawyer are faced with the decision of whether to file a lawsuit.
Filing the Lawsuit: A lawsuit is started by filing “Plaintiff’s Original Petition.” The person filing the lawsuit is the Plaintiff and the person being sued is the Defendant. The petition contains the names of the parties, a brief description of the accident, and a brief description of the injury and damages sought by the Plaintiff. The lawsuit is generally filed in the county where the accident occurred, but can also be filed in the county where the Defendant resides. Once the petition is filed, it is then handed over to either a constable or a private process server who will serve the lawsuit upon the Defendant.
Defendant’s Original Answer: Once the Defendant is served with the lawsuit, then there is a specific period of time in which the Defendant must enter an “appearance.” Failure to enter an appearance is grounds for the court entering a default judgment against the Defendant. An appearance is accomplished simply by the Defendant filing “Defendant’s Original Answer.” Almost every original answer contains a “general denial” which is a short statement in which the Defendant generally denies the allegations contained in the Plaintiff’s petition. The effect of a general denial is merely to place the burden of proving the case upon the Plaintiff.
In addition to a general denial, the original answer may also include “affirmative defenses” to the lawsuit. An affirmative defense may include statute of limitations, contributory negligence, settlement or release, waiver, etc. If the Defendant fails to list an affirmative defense in the answer, then he/she may not be permitted to use that defense at the trial of the case.