Litigation Strategy in Texas Dram Shop Lawsuits
There are plenty of attorneys who claim that they have years of experience handling a particular area of the law, but very few will actually publish their litigation strategy.
For more than 25 years, the attorneys at Grossman Law Offices have litigated more Texas dram shop cases than almost any other firm in Texas. In that time, our attorneys have developed a strategy that has helped more than 100 injured Texans recover damages from bars that have unlawfully served patrons who then caused accidents that resulted in injuries.
We don't discuss strategy in order to brag about what we have accomplished, but because we believe that clients are partners in any lawsuit. Unlike other firms we let our clients know that we represent them and will not take any major decisions without their consent. We never pressure clients to settle against their wishes. We work for the client, not the other way around.
In that spirit, it is not possible for a client to make those decisions unless we are both on the same page. Part of being on the page is making sure that they understand how we plan to litigate a dram shop lawsuit.
In this article, one of Dallas, Texas' most experienced dram shop attorneys, Michael Grossman explains how Grossman Law Offices litigates a Texas dram shop lawsuit.
Questions answered on this paged:
- What are the different steps in a Texas dram shop lawsuit?
- What purpose does each step in a lawsuit serve?
- Why is important to understand your lawyer's strategy before hiring them?
- Why is an experienced attorney important to pursue a dram shop claim?
The Steps in a Texas Dram Shop Lawsuit
Texas dram shop lawsuits proceed in roughly five stages. Each of these steps represent potential opportunities to strengthen a case, or the potential to fatally weaken it. When people wonder why lawsuits take time, the simplest answer is because each stage of a lawsuit requires thorough preparation. In some ways successfully pursuing a lawsuit is like building a house. Just like a house, lawsuits need strong foundations, sturdy frames, a well-built roof, and properly installed electrical and plumbing. Each of these elements in a well-built house has an analogous stage in a lawsuit.
Just as short-cuts on any one part of building a house will lead to an unsafe house, with a reduced value. The same can be said for the settlement in a poorly constructed lawsuit. In both instances, be it a house or a lawsuit if they are constructed poorly enough, they fall apart.
The five stages of a dram shop lawsuit, roughly speaking, are:
Pre-Suit (The Foundation)
Most people tend to assume that you hire an attorney when you're ready to file suit. While a lot of firms operate in that manner, at Grossman Law Offices, we believe that a case is only as strong as the investigative work that you put into it from the beginning. A solid investigation, which identifies the bar that over-served an intoxicated person, gathers physical evidence from the vehicles involved in a drunk driving accident, and tracks down as many potential witnesses as possible is the foundation of any Texas dram shop case.
In Texas, more so than other places, given the foundation issues endemic to the climate, we can appreciate the value of a superbly construction foundation. A dram shop case is no different. Unlike a lot of other personal injury cases, bars, restaurants, and liquor retailers don't just come forward and say, "We're the one's who unlawfully served that woman who caused that accident, sue us." Without a careful investigation, which takes advantage not only of eyewitness testimony to identify the bar, but also potential social media clues, as well as contacts, both active and retired with the Texas Alcoholic Beverage Commision, (TABC), it is possible to sue the wrong bar. Sue the wrong bar and an otherwise valid claim becomes worthless.
Just as most construction sites are fenced off when the foundation is laid, lawyers have the power to send out spoliation of evidence letters once a bar has been identified. These letters effectively fence off potential evidence in a dram shop case, ensuring that it is not destroyed before our investigators get the chance to look at it.
Once we have a good understanding of who to file suit against, the evidence available for your dram shop injury case, as well as whom we need to speak under oath, or depose, it is time to move on to the next step in the litigation process.
Filing Suit (The Frame)
Once our firm has a solid base from the pre-suit investigation, it is time to move on to the next phase, filing suit. A lawsuit informs the negligent bar that they are being sued, by whom, and how much we are seeking in damages on behalf of our injured client.
It also allows us to depose potential witnesses, or ask them questions under oath that they must answer truthfully or face the penalty of perjury. This phase of the case functions very much like framing a house. The evidence that has already been gathered is what we base further lines of inquiry upon. After all, it really doesn't matter if someone is under oath if you don't have any idea what to ask them.
This also serves as a framing stage, because it is when we begin to see how we plan to prove the three elements that must be proven in every Texas dram shop case. Those elements are:
- A licensed establishment served alcohol to an obviously intoxicated person.
- That person's intoxication was the proximate cause of an accident.
- That accident resulted in injuries.
The bar's staff is usually invaluable for proving the first element. This may seem counter-intuitive, since the first thing every bartender and manager does is deny that they served the person. After we are able to produce receipts or perhaps surveillance footage, the tune changes to, "The person wasn't intoxicated when we served them." Referring back to the receipts, footage, or the bartender's inconsistent or hazy recollection of the evening in questions, usually gets them to eventually admit that they really had no idea how much they served.
At that point, the bar owners will usually attempt to plead the Trained Server Defense, or Safe Harbor. This defense prevents a bar from being held liable if they meet three criteria. Those criteria are:
- The bar had a policy requiring its alcohol service staff to be TABC certified.
- On the evening when the incident occurred, everyone working was TABC certified.
- The bar did nothing, directly or indirectly to encourage the improper service of alcohol.
If a bar can prove all three of these elements, then just like they big bad wolf, they've huffed, puffed, blown your house down, and the case ends.
However, just because a bar attempts to argue Safe Harbor doesn't mean they'll be successful. In fact, in all of our years pursuing dram shop cases, we have never had a bar or restaurant successfully use this defense.
In fact, not only does Safe Harbor rarely succeed, but it causes bars and restaurants to essentially sabotage their own case. This happens because past bad deeds at a bar are normally not admissible, because judges want the case to deal with the issue at hand, the events of a particular evening. As soon as an establishment tries to claim Safe Harbor, all of their past behavior becomes relevant to disproving their defense.
Building off of what was learned in the pre-suit investigation, as well as in initial depositions, pretty much all of a bar's dirty laundry, such as previously over-service citations, drunk bartenders, fights, and pretty much any other problem relating to over-service becomes admissible. Invariably, this greatly damages their case.
Mediation (The Roof)
The law in Texas, most of the time, compels pre-trial mediation between the parties in a lawsuit. Mediation is usually conducted at a lawyers's office and involves both parties presence in separate rooms. Going between the two rooms is a mediator, usually a retired judge. The judge is able to look at the evidence and arguments of both sides and advise them of their relative strength, without divulging the content of the other side's case.
The purpose of advising the sides of the relative strength of their case can serve as the basis of a settlement. For instance, if a bar is suggesting that they have no liability, the mediator, swayed by a thorough plaintiff's case could inform them that most likely a jury would not find in their favor. The reverse would happen if a plaintiff were seeking a sum of money that their evidence did not support.
The backdrop of all mediation is the specter that each side evidence will go before a jury. The uncertainty of what a jury will do, the risk involved anytime a case goes to trial, provides the motivation for both sides to come to an agreement to avoid that process. For a plaintiff, no matter how strong your case, there is some jury out there somewhere who just won't see the evidence the way you want them to. For bars and restaurants, there is always the fear that if a case goes before a jury, they stand to lose far more money than if they were to just offer a reasonable settlement ahead of time. This factors provide urgency to both sides to make mediation work, if possible.
This process functions a lot like putting the roof on the house. Knowledge of the relative strength of the opponents case is a lot like knowledge of what kind of elements a house is expected to stand up to. Since the roof is vital for protecting a house against the elements, it has to be able to withstand whatever nature throws at it. In much the same way a dram shop injury claim has to be able to withstand whatever the defense brings to bear on it.
In many instances, mediation can offer the framework for a settlement between the two sides, but often it leads to more negotiation, mediation, or in instances where the sides are so far apart that their is no hope of reach and agreement, it results in nothing more than gauging the strength of the other side's case before trial.
Trial (The Electrical and Plumbing Work)
All of the steps in litigation are undertaken with a view towards trial. This is because under Texas law, people accused of causing injuries have no legal obligation to pay a single cent in damages unless those damages have been awarded by a jury. Each of the preceding steps is simply gathering the materials to show a bar or restaurant that based upon the evidence in the case, a jury will award compensation to the victim. Once a defendant becomes convinced that a jury will award damages, then it becomes in their interest to avoid the cost and time of going to trial to have a jury force them to do what the evidence already shows them that they should do.
Of course, not all defendants get the message and some are determined to have their day in court. While we won't go into all of the details of a trial in this article, its purpose is to prove to a jury that the evidence in the case and the law both support awarding compensation to a victim of a bar's unlawful alcohol service.
This is where having an attorney who is experienced at winning cases before a jury is crucial. It doesn't matter how well the investigation or negotiation went before if a lawyer can't bring it all together in the courtroom and get a verdict for their injured clients. Defense attorneys know which attorneys can convince a jury and which ones can't. If they know a plaintiff's attorney will avoid the courtroom and a jury at all costs, then they can have their clients offer significantly lower compensation, because the know the plaintiff's attorney would rather take a smaller amount than lose at trial.
It is in this way that trials most closely resemble the electrical and plumbing work in a house. You can have the strongest foundation, the sturdiest frame, and a well-built roof, but shoddy electrical or plumbing work can render everything else worthless and destroy the house from within.
If an attorney cannot deliver in the courtroom, they have essentially destroyed their client's case. Trial is where the case actually comes to life, through the presentation of evidence, be it physical, eye-witness testimony, or expert testimony. In general, Texas dram shop cases will have some combination of all three of those sources of evidence.
Another important factor is being able to connect with the jury. There is a bias in many Texas jurisdictions against dram shop cases. That is part of the reason why the vast majority of law firms won't take dram shop cases. It takes experienced attorneys to overcome that bias, attorneys who can explain what the law says clearly, articulate the underlying justice behind the laws, and know how to present a case with compelling evidence. Over the years, the attorneys at Grossman Law Offices have honed their skills in each of these areas.
Once the lawyers have presented their evidence, the judge instructs the jury and the matter is completely in their hands. While individual juries can be quite unpredictable, Texas juries as a whole tend towards fair and just decisions. A strong case, coupled with a strong courtroom presentation generally leads to favorable compensation for the victims in a dram shop case.
Settling Your Case (The House)
A Texas dram shop case usually ends one of two ways, either a settlement is reached before trial, or a jury returns a decision as to whether or not compensation is owed.
A settlement can occur at any time during the litigation process. There is no hard and fast rule for when a bar or restaurant may decide they want to settle. If building a case resembles the process of constructing a house, a settlement is really just the defendant saying mid-construction, you can stop building, we're going to buy you a house. Since the goal of any Texas dram shop litigation is to get compensation for the victims, a settlement can prove advantageous to both sides. Settlements can be pursued right up to the moment before a jury announces their verdict.
Ultimately, if a negotiated settlement is not reached, it is up to a Texas jury to settle matters. Whichever way they decide, their decision on the case is (leaving aside the issues of appeals) final and binding.
Why You Need an Experience Dram Shop Attorney
Ask yourself, if you were to undergo a surgery, would prefer to have the operation performed by a doctor doing it for the first time, or for a surgeon who had successfully performed the surgery a hundred times? While some may object to the comparison of a surgery and a Texas dram shop lawsuit, they fail to appreciated just how much a victim's life can be turned upside down due to a bar's unlawful alcohol service.
Bills can pile up. Wages can be lost for months or years at a time. In the worst instances, victims can end up permanently impaired, all because a bar or restaurant could not follow the laws of our state and served an obviously intoxicated person. In many of the dram shop cases that Grossman Law Offices has been involved in, the injuries the victim suffered will most likely be the single most traumatic event in their lives.
With so much at stake, it is important to entrust your case to an attorney with more experience handling dram shop cases than almost any other law firm in Texas. Over the past 25 years, Grossman Law Offices has literally handled over 100 Texas dram shop cases. In that time we have helped the victims of irresponsible bars and restaurants recover the compensation they were entitled to under the law. In fact, we are so confident in our way of doing business, that we are one of the few law firms that will lay out our legal strategy ahead of time to potential clients.
If you want to hire an attorney and hope for the best, there are plenty of law firms to choose from. If you want a law firm that realizes they are handling your case and are hired to get compensation for your injuries, then Grossman Law Offices is the law firm you've been looking for.
If you have questions about your case, or would like to get started pursuing your Texas dram shop case, give us a call at (855) 326-000. All consultations are absolutely free and you never pay us a cent unless we win your case.
If you have been involved in an accident caused by a bar's unlawful alcohol service, you may be interested in the following related articles:
- What Kinds of Compensation Are Available to Victims in Texas Dram Shop Cases?
- Texas Dram Shop Cases: How Do We Gather Evidence?
- Common Scenarios Under Texas Dram Shop Law
- Who Can Be Sued Under the Texas Dram Shop Act?
