What Is A Lawsuit?
There’s the “Law and Order” level of legal knowledge we all have, which is not too far from the truth, but of course attorneys view the law at a resolution in which we can see clearly explanations for many of the more frustrating parts of a lawsuit which are obscure to the layperson, so a brief introduction to litigation itself, from this attorney, might help clients then to better understand their situation within the legal process: What is “the legal process” exactly?
Since we are family law attorneys, let’s look at this in the context of a civil suit. In some ways a court is like the waiting area outside a monarch’s reception room, or a mafia don’s office. It offers an audience before a decision-maker whose decisions are ultimately enforced by the power of the state; by the blade of the fasces. These were axes (in bundles of sticks) carried by a Roman Consul’s bodyguards, to inflict capital punishment, which became the symbol of state power in our part of the world. You will see them in the courtroom, behind the judge.
You are not meeting with the Don or King, but with a representative of his, with his own independent authority technically applicable also to the man himself. You may think of this representative as a consigliere or vizier but the Church once performed this role—Bishops, before the power gravitated to the King’s courts, which we call courts of law; the former we call equity courts. Once these two courts existed side by side but now they are combined in the same civil (and criminal) law courts.
When a lawyer pleads to the equity he is pleading to the spirit of the law; when to law, he is appealing to the letter of it: to the corpus juris civilis (the “body of civil law”—the ancient collection of codes, precedents, and legal theories which make up “the law,” supposed applicable equally to us all). The notion of this tribunal called a “court” as something somewhat distinct from “the government”—as a place accessible to us all, in which we have a certain God-given dignity or “rights”—survives over from the ecclesiastical courts of equity and ancient citizen assemblies, and then of course many of those Godgiven rights and the independence of the judiciary are enshrined in the fundamental law of our land which is the United States Constitution, but these are unmistakably the King’s courts: They will enforce the will of the Legislature (the state itself—the Executive—is technically but another pleader in this court).
They will enforce it, that is, unless it is unconstitutional, but no less important is this: This court will enforce your contracts. We will come back to that in our next article; but, having surveyed this awesome power (and it is awesome), let’s next consider how we invoke it: the dreaded lawsuit.
The power to judge a case is invoked by filing a pleading with the court of appropriate jurisdiction, which is to say a court having jurisdiction of the subject matter of the case, situated in a place which is appropriate for hearing it, usually wherever the person who must answer the suit lives. Representing the lawmaking power of the sovereign, the Legislature divides the statewide general jurisdiction to hear legal cases geographically: cases arising in some place or another (whether the cause of the legal action occurred here or there) will usually determine where the jurisdiction is; but, secondly, in some localities or districts a clerk will assign cases to specialized courts. Here in the nation’s fourth largest metropolis there are 11 family law courts, in Harris County alone. Any case arising under the family code in this county—any claim for relief under the Family Code—will be assigned to the judge of one of these courts, or an associate of his.
That claim is made in a pleading or petition filed with the clerk. To bind to your suit the other party— this is a dispute, so necessarily someone else is involved, which is to say it must be an actual controversy, your suit—you must request the clerk issue what is called a citation, or demand to appear before the court and answer the pleading. The clerk will keep a record of the case, which must include a return of the citation, showing on its face that the demand and pleading were delivered personally to the defendant, unless he cannot be found or otherwise evades service of the papers, in which case the court may allow some other medium of assuring that the defending party has notice of your complaint to it. Only with proof of this service of notice can the court have personal jurisdiction to bind anyone to a judgment. In some cases the respondent may be beyond the court’s personal jurisdiction, even if you personally serve him, and even if the court would otherwise have jurisdiction to decide the case. This is so where a defendant is a nonresident who lacks any connection with Harris County, for example, such that he would be fairly answerable to a court here. That lengthy subject (virtually the whole of a first year civil procedure class) we will leave aside from this article, but suffice to say: Two things must be done to “bring a lawsuit,” “sue somebody,” or “take someone to court.” Those are (a) file a petition, and (b) serve the other side with process (i.e. your complaint and notice that the court has accepted it, hand-delivered).
Once that is done the case may proceed to trial but that verb has the same root as procedure. Remember: There is a process about this, which must unfold just as it was rolled up into the Rules of Civil Procedure. If you have heard the My Cousin Vinny judge’s drawl pronounce procedure you may have a sense of the fearsome majesty, ancient and arcane, with which civil procedure is regarded by the jurist, but it is not so esoteric in the general thrust of it: the judge wants the cases off his docket. His concern is first that his jurisdiction is properly invoked. He can dispose of the case immediately if not. This is called a dismissal. Second, if one of the parties is entitled to judgment under the undisputed facts of the case, he can decide it without a trial. This is called a summary judgment. Third, perhaps a trial will be unnecessary if the parties exchange the relevant evidence, either because one or the other will see that the undisputed facts lead to only one conclusion (and thus summary judgment) or because the parties will work out an agreement to avoid their respective risks in a trial. The latter is usually done in a mediation, to which the courts routinely refer anyone asking for a hearing; while the former is a hated thing called discovery, which we will not bother with in this article. The trend there is towards automatic exclusionary application of the rules and attorney’s fees awards for feet-dragging: If you have it, produce it; especially if you want to use it (i.e. give your attorney what you have).
We are only quickly charting the mechanics of a lawsuit here, for this question what is a lawsuit surprisingly involves mostly just invoking the jurisdiction, for one important reason why citizens have hired attorneys since the centuries in which fasces-bearing lictors (executioners) accompanied a Roman praetor (judge) daily to the forum is that without training in law you may articulate your complaint to the judge just as eloquently as Churchill before brunch yet still fail to state a cognizable claim: fail to plead a set of facts which if true would entitle you to some relief at law. We all know why we are upset with this or that person, but the picture why the court can or should do anything about it is the art of pleading a case and it is best not to practice it on yourself, even if you are trained in the law (else you will have a “fool for a client” as they say, for the reason that your own recital of how you were wronged—however restrained your delivery—is unlikely to input the variables which will return a favorable judgment from the ancient formulas known as legal causes of action). You are unlikely to state a claim which will proceed neatly to a trial or settlement in which you receive whatever it is you are hoping for. Assuming you do not fatally prejudice your case, you are likely to present it from your own perspective, as the wronged party, not for the perspective from the bench: that of who you are asking for help, the Judge.
Your lawyer is not only a zealous advocate for your case, he is also an adviser to you, in settlement discussions for example, and importantly he is an adviser to the court. He is admitted to stand at the bar which separates the judge’s bench from the audience bearing petitions. He advises the court as to what the law is, while urging your evidence, and guiding the judge to conclude that you are entitled to the relief prayed for. This is not something one should do for oneself, for the obvious reasons, but also because you are not alone in this: there is another side doing the same, but against you. You will need to anticipate their arguments and evidence, their challenges to yours, the judge’s skepticism of both, his desire to clear the room. All of this and more is what your attorney does for you: prosecutes your case.
Starting with the pleadings you must assert the jurisdiction to hear the case, but also standing to bring it. You must have a legally cognizable interest in the subject matter of the dispute to have any claim for relief. Texas’s family code codifies standing and most of the rest of basic family law, so that whether you have standing is normally an easily answered, threshold question. Challenging the standing of someone making a claim against you is however, along with challenging the court’s jurisdiction over you (a “special appearance”) or the subject matter (a “motion to dismiss”), a first line of defense to a suit; together with picking apart their pleadings to expose them as insufficient (a “special exception”).
Next you must plead the elements of a cause of action for which the relief you seek is available. These are like simple equations which can be deduced from the code and ancient precedent: If (a) and (b) are true and (c) is not then (x) relief is available, and the judge should grant it all because (d). This is simple enough but a trained attorney sees many more variables. Beyond how exactly you intend to meet the elements, given the evidence which exists in fact and what among that material is admissible in court, some important considerations are: What alternative relief is available, perhaps by way of another cause of action? What obstacles does the cause have? How may we plead differently to avoid those? What are the time constraints or potential delays and expenses involved with one course of action over another? Are we careful to avoid harmful inconsistencies arising when arguing the gravamen of the complaint? Are we inviting onerous litigation, to satisfy something which will ultimately prove relatively minor? How does our risk posture stand next to theirs? A lawyer’s “theory of the case”—if we are permitted some of the powdered wig theatrics—is exactly that: a plan to get what you want from the court, or not as the case may be.
As you can see, it is more complicated than can be fit into a hour-long television drama, or a brief article such as this, but we hope this walk through of what exactly a lawsuit is will help you to better understand where you are in the proceedings should you find yourself a party to one; to better understand why it is a process, not just two bickering souls and a bishop or king. The court must know that you are entitled to the relief, that cause for it is sufficiently pled, that it has jurisdiction to grant it, and that the evidence supports it. That this is carefully done in a process and with a language as obscure as the meaning of its steps may frustrate and confuse but we hope this sketch of the courtroom from the perspective of its bench gives confidence should you find yourself before one; and, in any event, you can be assured that we as your attorneys are talented and devoted advocates for your best interests, and those of your child.
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