Legal terminology can be confusing for many reasons. There are Latin terms, words used with special legal meaning and terms that are not used in common discussion. If you believe you have a legal claim you may be in the process of determining what it would take to resolve your claim. Or you may have hired an attorney and you want to learn more about what your attorney is doing on your case. This list is not exhaustive. There are large dictionaries full of legal terms and their special meanings to courts and attorneys. These are just a few common legal terms.
What is a class action lawsuit?
Most people hear class action and think of those big suits against drug manufacturers that get advertised on TV or that time you got a letter in the mail that you could be part of a class action based on something you bought and when you agreed to be part of the class you got a $6 check a few months later.
While those are indeed class actions, that’s not very helpful in understanding exactly what that is. A class action is a way of efficiently handling similar claims by similar plaintiffs against the same defendant. A class action can occur in a wrongful termination or wrongful discharge handled by your employment lawyer, as well consumer lawsuits and other employment law litigation.
Class actions in Texas
Let’s say 100 people across Texas suffered injury by the same toaster, and their injuries were burns from electrical shocks. All 100 people could file individual suits in court and the toaster manufacturer could defend itself in 100 suits. That would be very expensive for the manufacturer; but on the other hand it might win some of those suits. It could pay less in jury awards or settlements. This is a common type of class action lawsuit for a product liability lawyer.
Alternatively, those 100 suits could convert into a single class action grouping the suits into a single lawsuit. That way all the plaintiffs would be covered by the same experts. The manufacturer would only have to pay for employment lawyers and experts for a single case.
The upside for the plaintiffs is that typically in a class action the defendant wants to settle the case instead of trying to go through an entire trial and risk losing all the suits and paying jury awards on each one, so the plaintiffs are more likely going to receive fair compensation much quicker. Conversely defendants lowers their cost of fighting the lawsuits and typically they can negotiate a reasonable settlement. The upside for the court system is it can hear one case instead of 100. There is a 99% reduction in workload.
Employment law class actions in Texas
Class actions do not always involve product liability. There can be class actions in many areas of law, including employment law. Often an employer who has mistreated one employee has done the same thing to other employees. Rather than have each employee (or former employee) file a separate suit, they can file together in a class action. Class actions also do not always involve hundreds or thousands of plaintiffs. It is possible to have a class action of only two or three people.
Class actions are different than cases that have multiple joint plaintiffs. Sometimes a suit can be brought by multiple people without bringing a class action because they share a joint interest in the focus of the suit.
For example, if a husband and wife own a house together and somebody drives into it, they could sue the driver together because they both have an interest in the house. On the other hand, if the husband suffers injury by the car, some courts may let the husband and wife sue together for the property damage to the house but require the husband to sue separately for his bodily injury since the wife does not have an interest in his body.
What is discovery in a lawsuit?
Discovery is a process in litigation in which all parties to a lawsuit trade certain requests for information and documents and produce answers and documents in response to those requests. Discovery is governed by the rules of civil procedure (for civil lawsuits, including divorce and other family law litigation) under both the Texas Rules of Civil Procedure and the Federal Rules of Civil Procedure. The discovery rules intended to change the old litigation practice of trial by surprise; in which the parties to a lawsuit would show up for trial and neither side would know what evidence the other has.
When you see lawyer shows on TV, the trials often have that “ah ha!” moment or the gasp of the courtroom audience when the bomb drops. In reality, these moments rarely happen anymore because discovery removes the surprise. The reason why discovery makes sense is that if the parties to the lawsuit have all or most of the evidence that the other parties may produce then they can assess the strengths of each side and more accurately find common ground to settle.
The result is that a lot of lawsuits can be settled before trial and that helps reduce court clog. The discovery rules are broad and allow documents to be produced under the rules that would never be admissible in court.
The reason for the liberal discovery rules is because at the early stage of employment litigation neither side knows exactly what will be admissible at trial and it isn’t helpful to give the parties the opportunity to exclude evidence just because they don’t think it will be admissible. It also prevents the judge from having to rule prematurely on admissibility.
The consequence of those liberal rules is that discovery can be a very long and expensive process because the discovery requests can be very broad and the responsive documents can be quite long. It is common to request, for example, all emails between the parties for a given time period. There may be several hundred emails. That can be a lot to sort out, print and then on the other side review and organize.
What kind of discovery is available in a Texas civil trial?
In Texas, most discovery is conducted through a small number of discovery devices. There are a few types of discovery request that are rarely used because they deal with very specific requests. I’ll address only the most common types here:
1. Requests for Disclosure: Each party has an automatic right to make specific requests for disclosure contained in the rules. RFDs relate to the most basic information in the case, such as identification of witnesses, parties and the basic legal arguments of each side.
2. Requests for Production: RFPs permit parties to request documents from the other side. There are no limits to how many RFPs may be sent but the requests may be objected to and privilege may block the production of some documents that would be responsive to the request but need not be produced due to one or more privileges. RFPs produce the greatest volume of documents in discovery because that is how the parties obtain documents from the other side.
3. Requests for Admission: RFAs are requests that ask the opposing party to admit or deny some statement. They are basically yes or no questions. There are no limits to the number of RFAs but they can receive objections as responses. For example, if an RFA asked “How old are you?” then that would be objectionable because the answer to that question could never be admit or deny.
4. Interrogatories: Interrogatories are questions to parties to the lawsuit. Interrogatories may appear as a set of written questions or oral questions. The number of interrogatories may be limited by the rules of civil procedure, by agreement of the parties, or by court order.
5. Depositions: A deposition is a questioning of a non-party witness to the lawsuit. Depositions may be oral or written; but typically obtained orally. The amount of time permitted each party for depositions will be limited by the rules, court order or by agreement of the parties. A subpoena for deposition may also include an order that the witness produce documents for inspection.
What are requests for admission during discovery in a lawsuit?
Requests for admission are discovery requests under the Texas Rules of Civil Procedure and the Federal Rules of Civil Procedure that request an opposing party in a lawsuit admit or deny a stated admission. Requests for admission are available in all civil trials, including employment law such as wrongful termination lawsuits, but also family law matters like divorces and child custody. The purpose is to narrow the focus of trial by determining what facts and issues are in dispute.
Requests for admission can ask parties to admit to factual statements, verify the authenticity of a document, admit a signature on a document belongs to a party, and certain admissions on legal contentions. They can be extremely useful for both sides to help determine where the dispute truly lies. Often requests for admission can clarify the dispute and a trial on the issues can be shorter. That can save both parties a lot of time and money and encourage settlement.
Requests for admission in a Texas lawsuit, divorce, wrongful termination suit or FMLA claim
Both the federal and Texas rules permit unlimited requests for admission but parties should not abuse the discovery rules by asking for admissions unrelated to the case or in unnecessary volume to harass or annoy the other party. An example request for admission would look like this:
Admit or Deny the following:
1. Adam Kielich is the greatest lawyer the world has ever seen or will ever see.
Requests for Admission are powerful beyond their pre-trial narrowing of issues. Requests for admission answered in the affirmative can be evidence in trial and summary judgment. Perhaps most powerfully, if a party fails to answer requests for admission then they can be deemed admitted and the requesting party can use the admissions as conclusive evidence of the admission in summary judgment and trial. That is a huge advantage for the requesting party. A can can “undeem” deemed admissions in limited circumstances. They are not absolute. However, no guarantee exists that a judge will “undeem” the deemed admissions. For this very important reason, parties to a lawsuit should always take discovery practices like requests for admission seriously.
What are interrogatories?
Interrogatories are part of the discovery process in a lawsuit. They are written questions submitted by one party to the other party to answer in writing. Interrogatories, like depositions, are sworn testimony. They carry the same weight as courtroom testimony. Each party under the procedural rules of litigation can submit questions and the other party must answer them. Failing to answer interrogatories can result in anything from sanctions to dismissal of your case. Although your lawyer will assist you in answering the questions and asserting any objections or privileges to the questions, you will sign the responses as honest and accurate so it is important that you answer the questions honestly and accurately.
The most famous interrogatory came to President Clinton during his perjury investigation. He responded with: “that depends on what your definition of is is.”
While the president might be able to get away with that kind of answer, the lawsuits you are likely to face will require more precise and direct answers.
What is a deposition under the Texas Rules of Civil Procedure?
A deposition is part of the discovery process in a lawsuit, whether it is a wrongful termination of your employment or family law issue. The deposition is an interview of a witness or party to a lawsuit. Attorneys generally depose the opposing parties and witnesses in a lawsuit. It is rare that an attorney will depose (ask questions) his or her own party or witness.
The attorney and deponent review the deposition transcript afterwards. The deponent must sign the recorded deposition testimony as true. If something is inaccurate the deponent can change the testimony. For example, a witness may say one thing in a deposition, go home and think about it and realize the answer was wrong. Depositions are sworn testimony, so they are made under penalty of perjury, and they can be used in court as testimony. It is very important to answer questions in a deposition honestly and accurately.
Depositions in Texas litigation
Depositions can be long, tedious and even boring. However, they are an extremely important part of the discovery process. In civil trials, there are no Perry Mason moments where the attorney pulls out the secret evidence and destroys the other side. All parties engage in a sharing of information before trial. This helps each party prepare as well as assess the case. It encourages settling. Each party should understand the strengths and weaknesses of its case and determine its realistic chances of prevailing at trial.
What is voir dire?
Voir dire describes the process of questioning a witness or juror to determine the individual’s background. Attorneys use it for: (1) jury selection and (2) assessing a witness’s knowledge or expertise. Voir dire always occurs in the jury selection process. This is what most people think of when they hear voir dire. For example, if an employment attorney takes a wrongful termination lawsuit to trial, there will be voir dire of potential jurors before the trial.
Voir Dire During Jury Selection
Most people think of voir dire as a part of jury selection. You see it in legal TV shows and movies. This is the process of questioning prospective jurors to determine whether a potential juror may be impartial and possesses the capability to fairly consider the trial evidence and arguments. The judge or attorney asking questions may ask individual jurors specific questions. He or she may ask open questions and let potential jurors volunteer information, or poll the group of potential jurors. You have been in voir dire if you ever served on a jury.
Voir Dire of a Witness
An attorney may ask to voir dire a witness to determine if the witness has personal knowledge of facts. An attorney may also voir dire an expert witness to determine whether he or she has qualifications to render an expert opinion. In this type of voir dire the the judge suspends the hearing while the attorney cross-examines the witness. If the judge determines the witness is qualified then the hearing proceeds. If the judge determines the witness is not qualified then that portion of the testimony is stricken. The witness cannot provide further testimony on that subject.
Judgment nunc pro tunc
A judgment nunc pro tunc is a judgment to revise a written court order to eliminate a clerical error. A party may ask a judge to correct a written order because the written order does not match the judgment rendered by the court. A motion for judgment nunc pro tunc cannot ask the court to change the substance of the judgment to produce a different outcome. Instead it exists to ensure the written order matches the judgment. Motions, appeals, writs and other actions to overturn a judgment or revise a judgment are different from a motion for judgment nunc pro tunc. These judicial procedures seek a change in substance of the judgment.