Unfortunately, some business would still prefer to delay payment by hiring an attorney to answer a lawsuit. In that case, we continue to push forward using all available legal means at our disposal. In some cases we immediately move for summary judgment after the defendant files its answer. A motion for summary judgment is an attempt to obtain a judgment by motion with attached affidavits. The most common type of affidavit attached to motions for summary judgment in collection cases is the affidavit of a representative of the plaintiff who is personally familiar with the particular debt being sued upon and who is able to attach and incorporate documentation concerning the debt. Live testimony is not permitted at summary judgment hearings. Summary judgment in Texas is provided for in Texas Rule of Civil Procedure 166a which permits a party to the prompt disposition of a case when the party filing the motion shows that no genuine issues exist of any material fact and the party filing the motion is entitled to judgment as a matter of law.
While a summary judgment is an ideal way to quickly dispose of a case, most judges will allow the nonmoving party to obtain discovery, if requested, prior to entertaining a motion for summary judgment. In the majority of cases we file, therefore, we begin the discovery process as soon as the defendant files an answer and in many cases, we attach discovery to the petition and have it served simultaneously. The discovery process allows both parties to ‘discover’ the arguments and evidence the other side will use to support its position in the lawsuit. The parties are allowed to obtain discovery of any matter that is relevant to the subject matter of the pending lawsuit. The most common types of discovery include interrogatories, requests for admission, requests for production and depositions. Interrogatories are written questions served on the opposing party which must be answered under oath. Requests for admission are written questions which request the opposing party to admit or deny certain relevant facts. Requests for production request certain documents from the opposing party and depositions are a procedure where verbal questions are asked of a witness under oath and are recorded by a court reporter.
In cases where we first conduct discovery, we will still attempt to dispose of the case through summary judgment. If we are still unable to reduce the lawsuit to a judgment, we may try to mediate the case or proceed directly to trial. Mediation is a type of settlement conference in which an impartial person, the mediator, chosen by agreement of the parties or appointed by the presiding judge of the parties’ lawsuit, facilitates communication between the parties in an effort to achieve a settlement of the dispute. Many courts now order mediation. Regardless of whether the case is mediated, the possibility of settlement exists through every phase of the litigation process and we always work toward the voluntary settlement of the case and payment of the debt but continue to push the case to resolution through the litigation process.