Part 3 - Trial - It’s Not Like Perry Mason

You’ve taken your contract, invoices and your defendant’s address down to the justice of thepeace in the right precinct, and filled out a form filing your suit. Now what? The constable will have to serve the petition on the defendant, notifying them of your suit. You will want to call the constable’s office about two weeks after you file your suit, to make sure that the defendant has been served. If not, talk to the deputy that has the papers to see if there is a problem. The most common problem is that the defendant has moved, and you will need to provide the constable with a good address.

If the defendant has been served, they will have until the first Monday, after 10 days following service, to file an answer. To compute the due date, do not count the day of service, but do count the last day. Therefore, day one is the day after service. Count every day, even weekends and holidays, and if the last day falls on a Monday, answer day is the following Monday. If answer day falls on a holiday Monday, the answer is due the next business day.

If no answer is filed on time, you will get a default judgment. Contact the court, since you will need to set a hearing to testify about the amount due, and certify to the court that the defendant is not in the military.

If an answer is filed, you should call the court to request a trial date. In Texas, either party can request that the trial be held with a jury, instead of just the judge. The request must be made at least 30 days before the trial date, and a jury fee paid. If your defendant requests a jury trial, get a lawyer. The rules of evidence and procedure will be more strictly enforced in a jury trial, and a crash course will not be enough. However, this rarely happens unless the defendant has also hired a lawyer and intends to actively defend the case. The vast majority of trials in justice court are to the judge only.

On the day of trial, bring all your documents and any witnesses that may be necessary to prove your case. Be sure to arrive at least 15 minutes before the time for trial, to allow yourself time to catch your breath, and check with the court clerk in the courtroom to make sure that your case is scheduled on the docket. In most justice courts, there will be a full docket, so plan on staying most of the day, and be pleasantly surprised if you are done and back to the office by noon. If possible, sit near the front of the courtroom - it will help you hear what happens in the cases before yours and get a feel for how the judge handles things.

Many justice of the peace courts have volunteer mediators, and you will most likely be asked to go to mediation before your case is heard by the court. This is essentially an opportunity to reach a settlement. Why settle? Well, even assuming that the defendant has no good excuse for not paying you, mediation can be useful. First, an agreed judgment cannot be appealed, and is more likely to get paid. Second, you’ll get out of the courthouse faster, and back at what you really do for a living. I generally suggest that any settlement at this stage include a judgment, (since the defendant’s previous promises of payment have proved unreliable) as well as a specific schedule for payment.

If you are unable to settle at mediation, you will go to trial. Of course, will have already rehearsed what you will tell the court. Keeping in mind that the judge has a huge caseload, your credibility will be increased if you are able to be logical and concise. In other words, cut to the chase! Hand the court any documents that support what you have to say. It helps to tell your story in an orderly sequence, including only the facts relevant to what you need to prove. In other words, say “John Doe contacted me to purchase 300 widgets, which I sold to him for $5 each. The widgets were delivered to him and here is our invoice for $1,500 which has not been paid. Here is a copy of our demand letter. He claims the widgets were defective, but has never returned any of them to us.” Don’t go into long details of the history of the transaction, or your conversations, unless it really matters.

When presenting testimony from your own witnesses, ask simple, direct questions; a good rule ofthumb is that all of your questions should begin with Who, What, When, Where or Why. However, if you must ask questions of your opponent, NEVER ask “Why?” He is liable to tell you, and you won’t like the answer.

Be businesslike, polite, and always address the court, not your opponent. Do not imitate the people on Judge Judy who yell out “He’s lying!” in the middle of the other side’s presentation. It will hurt, not help. Just wait for them to be done with their story, and tell the judge you’d like to respond to what they’ve said, and then fill in the parts they changed or left out. Remember that many cases come down to a swearing match. Your job is to appear as credible as possible.

If you’ve done your job correctly, the trial will end with the judge saying “Judgment for the plaintiff in the amount of $1,500, interest at 6% from January 1, 1999 until today, and after today at the rate of 10%, and costs of court.” Congratulations - you won!

A Judgment is a piece of paper