What Happens in a Lawsuit?-Part 1-PreSuit

In the next several posts I am going to discuss the bringing and handling of a lawsuit in the context of an employment law case.  The first part will concern the pre-trial phase.  Once a decision is made to file a lawsuit, many decisions must be carefully made.   One of the first is who the defendants (the party that is sued) will be in this lawsuit.  If the claim involves discrimination and wrongful termination of an employee, then the defendant would be the employer.  However, determining the employer and the exact name of the true employer can be tricky.  Usually, I will first have my client describe all he can about the employer and what he believes the true name to be.  I would then look at any documents the client possesses concerning the true name of the employer.  One usually trustworthy method is to look at the name on the client’s w-2 form or checks.  I would also consult the internet and examine the website of the employer for their true name.  Next, I would search the records of the secretary of state to find the name, as well as the registered agent of service of documents.  Many times, an employer will use an assumed name or trade name.  In Texas, if you name the assumed name or trade name of a company as defendant, then you have actually sued the true owner of the assumed or trade name or the one using the name, even though those other names are not even mentioned in the lawsuit.  Therefore, it is always best  to sue a company by using its trade name first, such as the name it puts on its signs, in the phone book, its letterhead, or other advertising.  After using that name, if you are reasonably sure of the real name, you should also name that name as a defendant.  Many times, after I sue a company they will come forward and say that the one I have used is not the real name of the company and will give that name.  However, I never voluntarily remove the assumed or trade name from my pleadings because the rule about suing the assumed or trade name is “tried and true” in bringing in all who actually stand behind a trade name.  The trade name rule has been approved by the Texas Supreme Court as being a valid way of getting  jurisdiction over the owners of it.  The next matter to be decided is where to file the suit.  Generally, a plaintiff in an employment suit will want to keep the suit in a state court, if possible, because traditionally state courts have been more favorable to plaintiffs than federal courts.  This is not always true; however pages could be spent in discussing this area.  Also, the location of the suit is important, as to the county in which it can be filed.  This is controlled by law and the plaintiff can generally only sue a company either in the county where the claim happened or in the county of the company office in this state.  Sometimes, the location of the suit can be outcome decisive of the suit, so this is an important strategic decision.   The suit is initiated by the filing of written pleadings naming the defendant and setting forth the basis of the suit, the facts upon which it is based, and the law that is claimed to be violated.   The pleadings also contain allegations about the plaintiff’s (the one bringing the suit) damages.  After the suit is filed,  the defendant is entitled to notice of the suit by service of citation with a copy of the pleadings.  Usually, this is done by a certified letter or by a constable actually delivering the suit to the defendant.  After delivery of the citation, the defendant will have approximately twenty days to answer the suit with a written answer denying the allegations and requesting its relief.  If the defendant fails to answer the suit, then a default judgment can be taken, which would allow the plaintiff to win without a trial.  If the suit alleges a federal law violation or the defendant is a resident of a different state, the defendant may be able to have the suit transferred to federal court and out of the state court.  (To be continued).