Pre-litigation

The pre-litigation phase of the litigation process refers to the period before a formal lawsuit is filed in court. It sets the stage for potential litigation by gathering facts, exploring settlement options, and preparing legal strategies while aiming to resolve disputes efficiently and effectively. There are four important milestones for this initial stage:  

• Initial Consultation and Case Assessment. ​​Parties consult with attorneys to discuss their legal rights and options regarding a potential dispute. Attorneys evaluate the merits of the case, gather initial facts, and advise clients on potential courses of action. 

• Investigation. Attorneys conduct ‘fact-finding’ investigations to gather evidence relevant to the dispute. This includes gathering and reviewing documents, contracts, correspondence, and other relevant materials. Additionally, interviews with potential witnesses and experts are conducted to obtain statements. 

• Demand Letter. Often, before filing a lawsuit, the plaintiff (or potential plaintiff) may send a demand letter outlining their grievances, desired outcomes, and a potential resolution. The defendant (or potential defendant) may respond to the demand letter, either by disputing the claims, proposing a settlement, or refusing to settle. Attorneys engage in negotiations with the opposing party or their legal representatives to resolve the dispute without filing a formal lawsuit.

• Exploring ADR (alternative dispute resolution). Parties may attempt to settle the case through negotiation or alternative dispute resolution methods, including mediation and arbitration, outside of court. These negotiations may involve multiple rounds, extending the timeframe of this phase. They may also be encouraged, or even required, by the court to resolve disputes without a trial, potentially shortening the overall litigation timeline.

The estimated timeframe and billable hours for the pre-litigation phase are as follows: 

• Average Length = 1-3 months
• Attorney Hours = 10-20 hours 
• Support Staff Hours = 5-10 hours

Litigation

Filing the Complaint

The formal start of litigation begins with the filing of a complaint (or petition, in some jurisdictions) by the plaintiff outlining their claims against the defendant. The defendant then files an answer responding to the allegations. There are three important milestones for this stage:  

• Drafting Complaint. If negotiations fail to resolve the dispute, attorneys prepare necessary documents such as complaints (if plaintiff) or responses (if defendant). Additionally, attorneys evaluate the appropriate jurisdiction and venue for filing the lawsuit.

• Court Filing. The plaintiff (the party initiating the lawsuit) files a formal complaint or petition with the appropriate court. The complaint outlines the factual allegations against the defendant and states the legal claims being pursued.

• Serving Defendants. After filing, within a reasonable amount of time,  the plaintiff must ensure that the defendant is properly served with the complaint and a summons, which notifies them of the lawsuit and their obligation to respond.

The estimated timeframe and billable hours for this phase are as follows: 

• Average Length = 1-2 months
• Attorney Hours = 20-30 hours 
• Support Staff Hours = 10-15 hours

Defendant’s Response

As the process continues, the defendant must respond to the complaint in order to avoid having a default judgment entered against them. The two common responses to service of a citation, which may be filed either separately or together, are:

• Answer. The defendant can file an answer to the plaintiff’s petition. An answer is a formal written response where the defendant admits or denies the allegations made by the plaintiff. The answer can also include affirmative defenses and counterclaims if applicable. In Texas state courts, the defendant generally has until 10:00 a.m. on the Monday following 20 days after the date of service of the citation and petition to file an answer (TRCP rule 99). 

• Motion to Dismiss. Alternatively, if the defendant believes that the plaintiff’s petition is legally insufficient or fails to state a claim upon which relief can be granted, they can file a motion to dismiss under Rule 91a of the Texas Rules of Civil Procedure. This motion challenges the legal sufficiency of the claims asserted by the plaintiff. If the defendant decides to file a motion to dismiss under Rule 91a, this motion must be filed within 60 days after the first pleading containing the challenged cause of action is served and must be filed at least 21 days before the motion is heard. This motion specifically targets cases where the plaintiff’s claims have no basis in law or fact. Other grounds for a motion to dismiss other than Rule 91a include a lack of jurisdiction, improper venue, statute of limitations, and procedural deficiencies/default.

(note: Amendments to initial pleadings as well as requests for special exceptions and extensions can prolong this stage). 

The estimated timeframe and billable hours for this phase are as follows: 

• Average Length = 1-2 months
• Attorney Hours = 15-25 hours 
• Support Staff Hours = 5-10 hours

Discovery 

The discovery process in Texas civil litigation is a crucial phase where parties gather evidence to support their claims or defenses; it is also the longest. The duration of the discovery process in Texas civil litigation can vary widely depending on various factors such as the complexity of the case, the number of parties involved, the scope of discovery requests, and any disputes or challenges that arise during the process. While there is no fixed timeline set by law, the exact duration can vary significantly based on case-specific factors and procedural requirements. There are two important milestones in this stage: 

• Automatic (initial) disclosures. Automatic disclosures are due within 30 days after the defendant files an answer to the plaintiff’s petition. This includes disclosing the names and contact information of persons with knowledge of relevant facts, copies of relevant documents, and computation of damages, among other things. These disclosures are required under Rule 194 of the Texas Rules of Civil Procedure and are designed to facilitate the exchange of basic information between parties at the outset of the case.

• Formal Discovery Requests (ongoing discovery). After the parties have exchanged automatic disclosures, formal discovery requests can begin to be served. Formal discovery typically includes the following types of requests (for more information on the scope and limitations of formal discovery requests, see TRCP rules 190, 192):
  • Depositions: Taking sworn testimony of witnesses or parties outside of court.
  • Interrogatories: Written questions that must be answered under oath.
  • Requests for Production: Requests for documents, electronically stored information, or other tangible items.
  • Requests for Admission: Requests to admit or deny certain facts or the authenticity of documents.

The estimated timeframe and billable hours for this phase are as follows:

• Average Length = 6-12 months
• Attorney Hours = 100-200 hours 
• Support Staff Hours = 50-100 hours

Trial Preparation: Pretrial Conferences, Hearings, and Motions 

As the discovery period comes to an end, pretrial conferences finalizing trial preparation and hearings addressing any outstanding issues or motions are conducted as needed. There are two important milestones in this stage as applicable: 

• Summary Judgment. In requesting summary judgment, a party seeks to have the case decided in their favor without a full trial, arguing that there are no disputed material facts and that they are entitled to judgment as a matter of law. The Texas Rules of Civil Procedure outline that summary judgment motions can be filed at any time after the opposing party has had an adequate time for discovery, which usually means after the discovery phase is substantially complete. 

• Final Pretrial Conferences. In general, these conferences finalize trial preparations, discussing jury instructions, witness lists, and exhibits, and addressing any outstanding motions. The court typically sets the date for pre-trial conferences and the trial itself in a scheduling order or during an initial case management conference that usually occurs shortly after the initial pleadings. 

• Other Hearing/Motions. These can include motion hearings, evidentiary hearings, and settlement hearings. Due to procedural constraints, these hearings on trial logistics and any outstanding issues can take some time, prolonging a trial date. 

The estimated timeframe and billable hours for this phase are as follows:

• Average Length = 2-4 months
• Attorney Hours = 50-75 hours 
• Support Staff Hours = 20-30 hours

Settlement Negotiations and Alternative Dispute Resolution (ADR)

In lieu of a trial, settlement negotiations aim to resolve the dispute by reaching a mutually agreeable resolution between the parties. They offer parties opportunities to resolve disputes without the need for a full trial, saving time, money, and resources. These negotiations can occur at any stage of the litigation process. In some cases, the court may order parties to participate in ADR, especially mediation, to encourage settlement before trial. The settlement agreement is usually submitted to the court for approval. Once approved, the court may issue an order dismissing the case based on the settlement. There are two primary forms of ADR: 

• Mediation. A voluntary process where a neutral mediator helps parties negotiate a settlement. The mediator facilitates communication, identifies issues, and explores potential solutions but does not impose a decision. Mediation sessions can be scheduled at any time and often result in a written settlement agreement if successful.

• Arbitration.  A more formal process where a neutral arbitrator hears evidence and arguments from both parties and makes a binding decision. The arbitrator acts like a judge, issuing a decision that is usually final and enforceable. Parties present their case in a hearing, and the arbitrator issues an award. Arbitration can be binding or non-binding, depending on the agreement between the parties.

The estimated timeframe and billable hours for this phase are as follows:

• Average Length = 1-3 months
• Attorney Hours = 20-50 hours 
• Support Staff Hours = 10-20 hours

Trial

On average, a straightforward civil case might take about 1 to 2 years from filing to resolution. At this point, most cases will have been resolved either via judicial order or settlement between the parties. However, if it proves necessary, the trial itself is comparatively short, typically lasting from a few days to several weeks. 

The estimated timeframe and billable hours for this phase are as follows:

• Average Length = 1-3 weeks
• Attorney Hours = 80-150 hours 
• Support Staff Hours = 40-80 hours