Civil Litigation in Texas: The Basics in Three Phases
Civil litigation is the legal process for dealing with non-criminal
matters in court. Civil lawsuits usually do not result in jail time or
"punishment."1 Instead, the outcome of civil litigation is usually a
court order that requires one person to pay another person money,
stop interfering with another person’s rights, or do what they are
legally obligated to do. In some cases, a civil court order may be used
to give certain rights such as parental rights or rights to property.
The legal research, analysis, deadlines, formal presentations,
important objections and strategies that are all part of civil litigation can make it overwhelmingly
complex for non-attorneys. This guide is only intended to give a general overview of civil litigation.
Attorneys spend many years practicing litigation strategies, and a good litigator may be an essential
element of winning a difficult case.
For attorneys and self-represented litigants alike, “Going to court” is a long process, not a one-day trip
to the courthouse.
If you feel overwhelmed by the civil litigation process,
Contact us at TexasLawHelp.org and we will do our best to help you find the right
kind of assistance for your situation.
Uncontested and Contested Cases: An Important Difference
Before you begin reading about the three main phases of civil litigation, you should know that the civil
litigation process can, generally, take two main different forms.
Uncontested means that both sides agree on a desired outcome but are using the court system to make
their agreement legally binding. These people may be required to have their agreement approved by a
judge or they may decide to do so as a way to help protect their interests. Uncontested cases can be
successfully completed through careful research, attention to detail and organization.
Contested means that the people involved in the case do not agree on what the outcome of the case
should be. Contested cases require that both sides argue their position to explain why the law says that
a judge should rule in his/her favor. Contested cases will generally require much more work than an
uncontested case- even if the other side is not represented by an attorney. This is because you will need
to learn trial strategy and prepare to clearly explain the way that the law applies to the facts of your
case. Furthermore, you will need to give this explanation while addressing the other side, who will be
1
A judge may decide that jail time or fines are necessary if a person violates a court order and is found to be in
"contempt of court".
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presenting an explanation of the law that, challenges your explanation, arguing that it is only fair for the
judge to rule in their favor instead of yours.
If your case is contested and the other side is represented by an attorney, you should not try to
represent your own interests during a trial unless absolutely necessary. Instead, contact us through
TexasLawHelp.org for more information about other options for solving your legal problem.
Three Phases of Civil Litigation
Civil litigation is broken into 3 main phases: pre-trial, trial, and post-trial. Each of these phases has
certain tasks that must be completed in order to protect the rights of everyone involved in the lawsuit.
Phase One
Pre-Trial
1. Research
Phase Two
2. Filing
3. Notice & Response
Trial
4. Discovery
1. Limited Scope
2. Procedure
3. Evidence &
Objections
4. Practice
Note: Motions & Requests
Phase Three
Post-Trial
Deadlines
Default Judgments
Enforcement
Appeals
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Phase 1: Pre-Trial
The pre-trial phase of litigation can be explained in steps. You should expect these steps to be time
consuming, but also essential to a successful case.
Step 1: Research
Preparing a legal claim includes learning whether or not you
have a viable claim that can be heard by a judge, what laws
apply to the facts of your case, what facts are relevant to
your claim and what type of remedy you can ask for in
court. For more information about the specific steps you
should follow to successfully prepare a legal claim, click
here to review our Legal Research Guide.
As part of your research, investigate Alternative
Dispute Resolution2. Even experienced
attorneys regularly settle their cases outside of
court using ADR. This might be the best option
for you too. It could save you time, money and
even unnecessary damage to your personal
relationships. Click here for an Alternative
Dispute Resolution video.
Step 2: Filing
Use your research to tell you what specific information you are required to include in your petition. A
petition is the document you write that asks the court to give you a certain outcome.3 To file, take 3
copies4 of your petition to the Clerk of the Court. The clerk will stamp them to show that you are
officially asking the court for the things listed in your petition.
When you give your petition to the clerk you should be ready to pay a filing fee. Filing fees are often
$200 or more. If you cannot afford to pay the filing fee, you may file an affidavit or declaration of
indigency to ask the court to waive the fee for you. This form may also be called a Pauper’s Oath.
2
Also commonly known as mediation.
Depending on the facts of your case, this document may be called a different name than a “petition”.
4
One copy is for the court, another for you, and another for the other side.
3
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Please click the following link for a video on waiving filing fees in your case.
Click here to watch our instructional video on waiving filing fees.
Keep in mind: The court will not contact you with a court date or decision. Instead, you must complete
the next steps until you have a court order signed by a judge.
Click here to watch our instructional video about where to file your case.
Step 3: Notice & Response
After you file your petition with the court, you are required to tell the person, people or business that
could be affected by your case that you have filed. This is called giving legal notice. Your research in
Step 1 should tell you who the law requires you to notify in your specific type of case. If you are unsure
of who needs to be notified, you should research the notice requirements of your type of case more
specifically.
The person who files the Petition is called the Petitioner
or Plaintiff. (See Texas Rules of Civil Procedure Rule 22.)
The other side is usually called the Respondent in a civil
case, but may be referred to as the Defendant. (See
Texas Rules of Civil Procedure, Rule 99.)
To give legal notice, ask the court clerk to issue citation,
and arrange for a process server to give the citation to
the person (or business) you’re suing. You may not
serve the respondent yourself. The only way to avoid
formally serving the Respondent is if your case is
uncontested and the respondent shows their agreement by signing and filing a Waiver of Citation.
Click here for more instructions in our video about the Service of Citation Process.
Response - If the respondent receives notice of the case but thinks that he/she is outside of the court’s
jurisdiction, then the respondent should file a Special Appearance before filing anything else.
Filing any other type of response before a Special
Appearance will tell the court that the respondent submits
to the court’s jurisdiction.
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If the respondent does not have a jurisdictional challenge, he/she should file an Answer with the court
clerk to show that he/she is interested in the case and is not ignoring the court’s authority. There is
generally not a fee to file an Answer.
If the respondent has his/her own claims against the petitioner, then the respondent can tell the court
about those claims in a Counter-Petition. There is usually a fee to file a Counter-Petition. An Affidavit or
Declaration of Indingency can be used for a Counter Petition to attempt to waive the filing fees.
Discovery is the legal process each side uses to get information that is relevant to their case, but is in the
other side’s possession. Discovery has certain time limits and deadlines. If you are unsure of what these
limits and deadlines are, you should research them specifically. (See Texas Rules of Civil Procedure, Rule
192.1 and 192.2.)
During the discovery period, each party can ask the other party to:
 Answer written questions
(Requests for Admissions, Disclosure or Interrogatories)
 Allow a party to look at documents or property
(Request for Production, Inspection, Entry)
 Submit to a mental or physical exam
 Submit to questioning under oath
(Deposition)
Answering Discovery - If you’ve been sent Discovery requests, answer it within the time that the court
orders or the civil procedure rules require. Answer completely, based on all information reasonably
available to you. (See Texas Rules of Civil Procedure, Rule 192.7 – 193.1)
For more information about different discovery methods, click here to review our Discovery Packet.
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Note: Motions & Requests
Sometimes, parties need to ask the court for things before or during trial. To ask the court for
something during litigation, you will usually need to file either a motion or request. Some of the most
common motions and requests are:
Request for Jury- This request should be made if you want a jury to decide your case. Due to the current
state of the law, it can be difficult to get a jury in your case. (See Texas Rules of Civil Procedure
216a).
Motion for Continuance- This written motion asks the
judge to postpone your hearing until a later date. This
motion must include the reasons why your hearing should
be postponed. (See Texas Rules of Civil Procedure 247,
251-254, 330(c-d)).
Motion to Amend Petition - You may change your
petition before trial by filing a changed petition with the
court clerk. This is commonly known as amending a petition. This is done to add or take away
something that has been put in the previous petition to the court.
This new petition title should start with the words “First Amended.”5 For example, if you were
amending an Original Petition for Divorce you would title the amended petition First Amended Original
Petition for Divorce.
The amended petition should be completely filled out so that it is a complete filing. Do not just fill out
the parts you want to change, instead fill out the petition with the parts you want to change and the
parts you don’t so that it is a complete filing. After filing this amended petition, you must notify the
other party so that they know what the changes are.
If you decide to change your petition during the last seven days before trial, you must ask the judge for
permission to amend your pleading. To ask for permission, use a Motion to Amend Pleading. (See Texas
Rules of Civil Procedure 63-65.)
Temporary Orders- Because litigation can take months to complete, judges will sometimes issue
temporary orders that tell the parties what they must and must not do until the final hearing. To ask the
judge to order the other side to stop doing something that might harm you or begin fulfilling an
obligation, ask for temporary orders in writing. The other side may write their own ask for their own
temporary orders as well. The judge will decide what orders are most appropriate.
5
Or Second/Third Amended Petition if you have already changed it before.
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Ending a Case before Trial can also be accomplished through submitting a motion to the court.
Generally, the motions that might be used to end a case before trial include:
Nonsuit: If the Plaintiff hasn’t shown all of his or her evidence, other than rebuttal evidence, to the
court, the Plaintiff can end the case by filing a Notice of Nonsuit with the court clerk. (See Texas Rules of
Civil Procedure 162, 163.)
Click here for forms to Nonsuit a Case in Texas.
Dismissal: The court can dismiss a case if the Plaintiff
didn’t file it properly or didn’t follow the Texas Rules
of Civil Procedure. (See Texas Rule of Civil Procedure
165a)
A common way this can happen is a case being
Dismissed for Want of Prosecution if no action has
been taken in the case.
Click here for forms to stop this from happening AND forms to reinstate a case if it has been already
dismissed for want of prosecution.
Settlement: Generally, parties can work out an agreement and resolve part or all of a case before it goes
to trial in a settlement agreement. If this is the case it is a good idea to have a licensed attorney read
over the agreement before it is finalized.
Summary Judgment: When there are no disputes about the important facts of the case and based on
those important facts there is no evidence to support the claim or defense of the case, the judge can
grant a Motion for Summary Judgment, and decide the case before trial. (See Texas Rule of Civil
Procedure 166a.)
Default Judgment. The judge can give a default judgment to the Plaintiff when the Respondent has
been served with citation, but does not respond to the case or the Respondent has filed a response, but
fails to appear for trial. (Texas Rules of Civil Procedure 85, 99, 237, 239.)
Click here for forms and more information on getting a Default Judgment in a Family Law case in
Texas.
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Phase 2: Trial
The trial phase of the civil litigation process will be very different if your case is uncontested, meaning
that both sides agree on what the final outcome of the case should be. If your case is uncontested, the
trial phase should be very short and might be better thought of as a “hearing”.
During the final hearing of an uncontested case, you will simply present your signed order to the Judge,
answer any questions that the Judge may have about your agreement and then file the order with the
Court Clerk once the Judge has signed it.
If you and the other side of your case
disagree about what the outcome of
the case should be then your case is
contested. If your case is contested,
then you will need to spend a lot of
time preparing for trial.
To prepare for a contested trial you should start
by looking for an attorney who offers limited
scope representation and can coach you through the issues and strategies that might come up in trial
based on the facts of your case. You should also spend time learning the Texas Rules of Civil Procedure,
Texas Rules of Evidence and trial objections and practice them regularly so that you are comfortable
using them quickly and under pressure.
Click HERE for a video on representing yourself in court.
Step 1: Limited Scope Representation
If you plan to represent yourself in a contested
trial, consider hiring a private attorney to
provide you with limited scope representation,
also known as unbundling. Not every attorney
offers limited scope representation. However,
attorneys who offer limited scope
representation may help you prepare for court
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at a price you can afford. Limited scope representation is less expensive than hiring an attorney to go to
court for you, because you will complete most of the work yourself. However, talking to an experienced
attorney about the presentation, procedures and objections that you are likely to see and use in court
could determine whether you win or lose your case.
Click here to watch our video about how to find an attorney and Limited Scope Representation
Click here for an Informational Packet on Limited Scope Representation
Step 2: Procedure
Even if you hire a limited scope attorney to help you prepare your case, you should plan to spend time
studying court procedures so that you understand what is happening during your trial. Whether or not
you are a lawyer, you will be expected to follow the same rules that lawyers must follow in court. These
rules are called the Texas Rules of Civil Procedure.
Once you are in trial, you will not have the chance to
research what is happening. Instead you should prepare for
different possible scenarios and outcomes in advance so
that you are ready to participate even if things go
differently than you expected. For more information about
Court Procedures, click here to watch our video.
Step 3: Evidence & Objections
In addition to the Texas Rules of Civil Procedure, you should
also spend time studying the Texas Rules of Evidence.
These rules tell how to introduce and share important
information about your case with the court. As you study,
make sure that you understand the legal concepts of
relevance, privilege, hearsay and admissibility.
Understanding these concepts will help you learn objections
that can be used to keep inadmissible or inappropriate
information out of court.
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Generally, if you disagree with the trial judge about what information should or should not be admitted
into court, you need to say something about it during trial. This is because in most cases you will not be
able to appeal your case, for that reason, unless the trial judge made a mistake despite your objection.
Learning how to properly preserve a mistake for appeal will be part of your trial preparation.
Step 4: Practice
In court you will need to clearly explain the way that the law applies to the facts of your case.
You will also need to know the legal concepts, available evidence, procedures and rules that apply to
your case. This already is a lot of information to remember! In court, you must be ready to apply and
present all of this information while the other side interrupts you, tells the judge that your story is not
believable, you do not understand the law and then tells their own version of the story that you might
know or believe is untrue. To stay calm even in this type of stressful atmosphere, you will need to
practice what you want to say over and over again. Click here to watch our video about Getting Ready
to Go to Court.
Phase 3: Post-Trial
IMPORTANT: Deadlines
Whether you agree or disagree with the judge’s final decision, you should pay special
attention to the deadlines that apply to post-trial action. These deadlines will tell you
how long you must wait before your judgment is no longer eligible for appeal. Appeal
standards are very complex and often overwhelming for non-attorneys. You should talk
to an attorney about your case if you want to appeal the judge’s decision OR if the other side has an
attorney to help them appeal a judgment in your favor.
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Scenario 1: Setting Aside Default Judgments
If you were given improper notice about a case that resulted in a default
judgment against you, then you may be able to have that decision set aside.
Getting a default judgment set aside is not easy, and is best done with the
help of a licensed attorney. If this has happened to you, you should act
quickly to contact legal aid or a private attorney to help you set aside the
default judgment.
Scenario 2: Enforcement
If you agree with the outcome of your case, you may still need to take extra steps to enforce the judge’s
order after it is signed. Read the court order closely so that you understand what must be done to
comply with the court order. Make sure you understand your obligations as well as the other side’s
obligations to you. Look for deadlines that tell how long you and/or the other side each have to comply
with the court order.
If the other side does not comply with the court order by the deadline, you may file a Motion to Enforce
or a similar titled document to tell the judge that the court order is not being followed. What you file to
enforce a judgment and the specific enforcement process will depend on the type of case you have.
In general to prepare to bring an enforcement action, gather any evidence that shows the other side is
not following the court order. Based on this evidence, the judge will decide what steps are appropriate
to make the other person obey the court order. Possible penalties for ignoring a court order can include
fines, property liens, collection of property by a peace officer, license suspensions and/ or forcing the
sale of certain property. 6
Click Here if you are having trouble enforcing a child support order.
Click Here if you are having trouble enforcing your rights to visitation.
Click Here for information on enforcing a Justice Court (Small Claims Court) Judgment. – Go to Page 21
at the link.
6
Texas Rules of Civil Procedure 621, 622, 630, 637; Texas Property Code §52.001; Civil Practice and Remedies Code
§31.002
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Scenario 3: Appeal
If you disagree with the judge’s decision then you may be able to appeal it. An appeal takes place when
an appellate court reviews what happened in the trial court. If the appellate court believes the trial
court made a mistake (called an error) and believes the mistake made a difference in the outcome of
your case (harmful error), the appellate court can change the trial court’s decision or send your case
back to the trial court to be tried again.
Click HERE for a guide to appealing your case.
For more information about appealing your case and other information about the civil litigation
process in Texas, visit your local law library and review the following helpful resources:

Represent Yourself in Court by Nolo Press

Texas Rules of Civil Procedure – available online.

Texas Rules of Appellate Procedure – available online

O’Connor’s Texas Rules – Civil Trials by Michol O’Connor, Jones McClure Publishing

Various Books of Legal Forms called Litigation Guides and Practice Manuals
And remember….
If you feel overwhelmed by the civil litigation process,
Contact us at TexasLawHelp.org and we will do our best to help you find the right
kind of assistance for your situation.
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