Filing Suit in a Texas Dram Shop Case
Most people assume that a lawsuit begins with filing suit. While this is technically correct, the process actually begins when a victim in a Texas dram shop case hires an attorney and that attorney starts investigating the case.
Texas law provides legal means for victims of alcohol-related accidents to recover compensation, in the event that their injuries are caused by unlawful alcohol service. While this is great for victims, it does present some obstacles. The right to file a lawsuit is merely academic without knowing which bar, restaurant, or liquor store actually served an obviously intoxicated person. That is why most dram shop cases do not begin with a lawsuit, but with a preliminary investigation to track down the provider who illegally supplied alcohol.
In addition, the extent of a victim's damages are usually not readily apparent in the immediate aftermath of an accident. Suing someone is not about publicly exposing them for violating a duty that they owed to an individual, but it's main purpose is to allow victims to recover compensation. If a victim and their legal team cannot place a value on the injuries that they have sustained, filing a lawsuit is pre-mature.
However, once the bar (it could be any licensed alcohol provider) has been identified and the victim's attorney can calculate the damages of the accident, it is time to file a lawsuit. A lawsuit is merely the formal paperwork alleging that an alcohol provider breached a duty, that breach caused an accident, and the accident resulted in injuries. The lawsuit will also contain the amount of damages that the injury victim seeks.
In this article, one of Texas' most experienced dram shop attorneys, Michael Grossman, discusses the strategy involved in filing a dram shop lawsuit.
Questions answered on this page:
- What is a lawsuit?
- What consideration goes into filing a lawsuit?
- How does filing a Texas dram shop lawsuit help me recover compensation for my injuries?
- Why do I need an experienced dram shop attorney to help with my lawsuit?
If you are interested in the other steps in pursuing a Texas dram shop case, then feel free to check out the other articles in this series. They include:
What is a Lawsuit?
A lawsuit is merely the paperwork that is filed with a court, informing them of your intention to pursue a claim against another party. This paperwork contains the name of the businesses or persons who are being sued, the grounds on which they are being sued, and the amount of compensation the bringer of the suit (the plaintiff) is seeking.
Except in rare instances, under Texas law a lawsuit must be filed within 2 years of when an incident occurred. This is known as the statute of limitations. The reason for this rule is that it becomes impossible to mount an effective defense after a long period of time has passed. For instance if someone was injured by a business 40 years ago, it would not be fair to that business, who may not even have anyone left working there who remembers the event, to force them to make a defense. If a lawsuit is not filed within 2 years of the incident, the claim simply vanishes and the victim's ability to recover compensation along with it.
How do I know when to file a lawsuit?
The simple answer to that question is to hire an experienced dram shop attorney and let them decide. However, nothing in the law says that a person has to be an attorney to file a lawsuit. While non-lawyers are free to file lawsuits, it is not advisable, for a number of technical and practical reasons.
In dram shop cases in particular, filing a lawsuit is a bit more complicated than it is in other civil matters. In dram shop cases even knowing who to sue can be a challenge. After an accident that has resulted because a bar unlawfully over-served someone alcohol, bars, restaurants, and liquor stores don't call up the victims and say, "We're the ones who over-served the drunk driver from that accident last week, sue us." It usually takes a rather thorough investigation to determine which bars should be sued.
This is important, because if you sue the wrong alcohol serving establishment, the case will be tossed out of court in short order. It would be the same as if your neighbor was involved in a car accident and through a mistake you ended up being the one who was sued. You would go to court, show that you weren't in the accident, they had the wrong person named in the suit, and the case would be dismissed.
In most dram shop cases, the accident results in pretty substantial injuries to the victim. The full extent of moderate to severe injuries usually takes a bit of time before doctors can even begin to figure out how much it is going to cost to treat them. For this reason, it is best to wait to file suit until after the full extent of the medical costs is known.
For instance, if a victim suffers a broken leg in a drunk driving accident, which was result of a bar's unlawful service, that may only be several thousand dollars in medical costs and lost wages while waiting for the leg to heal. The victim may feel comfortable filing suit rather quickly for $10,000 dollars to cover lost wages and their medical expenses. However, if on a subsequent trip to the doctor's office it is revealed that complications set in resulting from an infection and the leg will never heal properly, the victim not only has more medical bills, but also much greater lost wages and permanent impairment. That can raise the compensation necessary to make the victim whole into the hundreds of thousands or even millions of dollars. The lawsuit can be amended to reflect the new reality, but it can damage the case, because the initial demand was so much lower.
That is why most experienced attorneys will not file a lawsuit until the full extent of their client's injuries are known and their is an estimate of the cost for all of their treatment.
How Does Filing a Lawsuit Change My Case?
Prior to filing suit, evidence is gathered through a private investigation into the accident. Your attorney will hire investigators to look track down the bar or restaurant that over-served the intoxicated person who caused your accident, as well as contact any local authorities who may have responded to the accident. Experienced dram shop attorneys also work (informally) with the Texas Alcoholic Beverage Commission (TABC) to not only find the bar, but also to discover if the bar or restaurant had any past instance of improper alcohol service.
In addition, once a bar has been located, even before filing suit, an attorney will send the bar a letter of spoliation. This letter puts the bar on legal notice that they are being investigated and compels them not destroy evidence. While it is never legal for an establishment to destroy evidence, even before they receive a letter of spoliation, they can simply claim that they were unaware that what they had destroyed was evidence. Receipts can be shredded, security footage erased, and even staff members can be persuaded by management that a certain story was what actually happened. A letter of spoliation will spell out which evidence that an attorney is interested in preserving and compels the bar or restaurant not to destroy that evidence.
What a letter of spoliation does not do is to compel the bar to hand over that evidence or speak with the victim's attorney. Until a lawsuit is filed, from the court's perspective, a case does not exist. This means that victims' attorneys have only a limited subpoena power, or the ability to compel witnesses to testify under oath, or force businesses to share evidence.
Once a lawsuit is filed, attorneys have a much stronger subpoena power. The management and staff of a bar or restaurant can be compelled to testify under oath by subpoena power. Questioning witnesses under oath is called taking their deposition, or deposing them. Witnesses are questioned and must answer truthfully or face the penalty of perjury. These depositions will later form the basis for the evidence presented in court.
In addition, after suit has been filed, a victim's attorney can subpoena evidence, such as receipts and surveillance video. The bar is compelled to share this evidence, if it exists, or they can be held in contempt of court, which could result in fines or even the imprisonment of the owners or management, depending on how the company is set up.
The subpoena power that an attorney gains after filing suit greatly accelerates the evidence gathering process.
Why Hiring the Right Experienced Dram Shop Attorney Matters
Filing a lawsuit is not the beginning of a Texas dram shop case and it is not the end of the case. It marks an important step in the process.
For over 25 years the attorneys at Grossman Law Offices have helped injured Texans hold alcohol providers accountable when they unlawfully serve intoxicated patrons. The compensation that Grossman Law Offices has help hundreds of injured Texans obtain has been crucial to helping them restore their lives after an accident. In addition, no firm that we are aware of has handled and won more Texas dram shop cases in that time.
If you or a loved one has been injured in a drunk driving accident, there is a strong likelihood that a bar or restaurant's unlawful alcohol service was to blame. To find out more, or to have any questions you might have answered, call (855) 326-0000 for a free consultation. We answer the phone 24/7.
If you have been injured by a bar's unlawful alcohol service, you may be interested in the following related articles
- Over-sized Drinks and Texas Drunk Driving Accidents
- Suing Social Hosts Under the Texas Dram Shop Act
- When Are Slip and Fall Accident Potential Texas Dram Shop Cases?
- Toxicologists as Expert Witnesses in Texas Dram Shop Cases