Pre-litigation strategy · Dallas, Texas
Pre-Litigation Strategy: Deciding Whether and How to Sue
A lawsuit is a business decision made with incomplete information. Pre-litigation work fills in the facts, protects the evidence and the deadline, and gives the owner a real choice between filing, settling and walking away.
- Shareholder, Hallett & Perrin, P.C.
- State and federal litigation experience
- Represents plaintiffs and defendants
Before anything is filed
The work before filing decides more than most people expect.
- 01You think you have a claim and want to know if it is worth itLiability, damages, collectability and cost, assessed honestly before the first filing fee.
- 02Your company has been threatened with a lawsuitThe other side's letter says a suit is coming. What to preserve, what to say and whether to move first.
- 03You do not yet know enough to plead a caseThe facts are inside the other party. Rule 202 allows a deposition before suit to investigate a potential claim.
- 04The limitations deadline is closeTwo years, four years or a contractual period. A tolling agreement can stop the clock while the parties talk.
- 05Evidence is about to disappearTexts, server logs, a departing employee's laptop. The duty to preserve starts when litigation is reasonably anticipated, not when it is filed.
How Tina approaches the decision to sue
The goal is a decision the owner can defend to a partner, a lender or a board, with the risks named.
Hear the whole story, then read the documents
The contract, the emails, the ledger and the timeline. The first meeting usually surfaces a fact that changes the claim.
Map the claims and the defenses
Which causes of action the facts support, what the other side will say, and which court or arbitral forum the dispute belongs in.
Check the clock and protect it
Limitations under Chapter 16 of the Civil Practice and Remedies Code, contractual notice periods, and whether a tolling agreement is available before the deadline closes the option.
Preserve the evidence on both sides
A litigation hold inside your company and a preservation letter to the other side, so that nothing is lost and nothing you lose can be held against you.
Put the decision in business terms
Likely outcomes, realistic cost by stage, collectability and the cost of not acting, so that filing, negotiating or walking away is a choice rather than a reaction.
The Texas law that shapes the decision before filing
Three parts of Texas law do most of the work before a lawsuit exists: the statutes of limitations, the rule that allows a deposition before suit, and the duty to preserve evidence once litigation is reasonably anticipated.
Limitations: Chapter 16 of the Civil Practice and Remedies Code
Section 16.004(a) gives four years from accrual for suits on a debt, for fraud and for breach of fiduciary duty, and Section 16.051 applies the same four-year residual period to claims with no express period, which is where breach of contract falls. Section 16.003(a) gives two years for conversion, taking or detaining another's property, and injury to property, which covers many tort claims that travel with a business dispute. When a claim accrued, and whether the discovery rule or fraudulent concealment delays accrual, is often the real argument.
Contracts can shorten these periods, but not below two years: Section 16.070 voids any agreement that sets a limitations period shorter than two years, except in the sale or purchase of a business for consideration of $500,000 or more. Parties can also extend time by agreement. A tolling agreement is a contract in which both sides agree that the period will not run while they investigate or negotiate; it preserves the claim without filing it. Section 16.065 adds that a written, signed acknowledgment of a claim can defeat a limitations defense that would otherwise apply.
Rule 202: a deposition before there is a lawsuit
Texas Rule of Civil Procedure 202.1 allows a person to petition a court for an order authorizing a deposition, on oral examination or written questions, either to perpetuate testimony for an anticipated suit or to investigate a potential claim or suit. Under Rule 202.4(a), the court must order the deposition if, but only if, it finds that doing so may prevent a failure or delay of justice in an anticipated suit, or that the likely benefit of investigating the potential claim outweighs the burden or expense.
Rule 202 suits the owner who suspects but cannot yet prove: a partner's side deals, a former employee's new venture. Courts police it against fishing, so the petition must describe a specific potential claim and why the testimony is needed now.
Preserving evidence once a dispute is anticipated
The duty to preserve relevant evidence arises when a party knows or reasonably should know that there is a substantial chance a claim will be filed and that evidence in its possession is relevant to it. That is usually before any suit, often at the first demand letter. A company that lets routine deletion continue after that point risks a spoliation finding and the sanctions that follow. The practical answer is a written litigation hold that names the custodians, the systems and the date ranges, and a short preservation letter to the other side that puts the same duty on them. The guide to spoliation in Texas covers the consequences in detail.
Why the advice should come from a trial lawyer
The decision to sue is made best by someone who has taken cases all the way through trial and knows what each stage costs in money, time and attention. A litigator who has also defended these claims knows which facts the other side will use and which theories do not survive contact with a courtroom.
Tina Wysk brings that perspective to the stage before filing. She has handled business disputes in Texas state and federal courts and in arbitration, for plaintiffs and for defendants, from the first letter to the verdict. That is why her pre-litigation advice is concrete: what the evidence shows, what the claim is worth, what each path will cost, and what she would do with the information you have. The owner then decides.
The business cost of a dispute
What an unresolved dispute costs before anyone files
The decision to sue is usually framed as cost versus recovery. The cost of doing nothing belongs in the same column.
A receivable that is not cash
An unpaid claim sits on the books as an asset the business cannot spend or borrow against, and its value falls as the debtor's position changes.
The owner's attention
A dispute that is neither pursued nor closed is thought about every week. That time comes out of sales, hiring and the next project.
A relationship in suspension
Partners, vendors and customers in an open dispute stop doing business in the meantime. Deciding, even to settle for less, restores the ability to plan.
Deadlines that close quietly
Limitations runs whether or not anyone is watching. A claim lost to the calendar is the most expensive outcome, because it costs the whole claim.
Questions
Questions about the stage before a lawsuit
How do I know if my claim is worth pursuing?
Four questions decide it: can liability be proved, what damages does the law actually allow, can the defendant pay a judgment, and what will it cost by stage to get there. A litigator should give you an honest view of all four before anything is filed.
How long do I have to sue in Texas?
For most business claims, four years from accrual: Section 16.004 for debt, fraud and breach of fiduciary duty, and Section 16.051 for breach of contract and other claims without a specific period. Conversion and injury to property carry two years under Section 16.003. When the claim accrued is often disputed, so the date should be checked early rather than assumed.
What is a tolling agreement?
A written agreement that the statute of limitations will not run for a defined period while the parties investigate or negotiate. It must be signed before limitations expires; it cannot revive a claim already barred, apart from the narrow rule in Section 16.065 for a signed written acknowledgment of the claim.
What is a Rule 202 deposition?
A deposition taken before any lawsuit, authorized by a court under Texas Rule of Civil Procedure 202, either to preserve testimony for an anticipated suit or to investigate whether there is a claim. The court must find that the benefit outweighs the burden or that the deposition may prevent a failure or delay of justice. It is useful when the facts you need sit with the other party and the cost of guessing wrong is high.
When does my company have to start preserving evidence?
When litigation is reasonably anticipated, which is usually when a demand letter arrives or is sent, or when an internal dispute makes a claim likely. Routine deletion of emails, texts and files after that point can be treated as spoliation. A written litigation hold is the standard response.
Guides on deciding whether to sue
The questions owners ask before they file, answered under Texas law.
Demand Letters & Pre-Litigation
Demand Letter or Lawsuit: Which Should Come First?
For most business disputes the letter comes first: it is cheaper and protects a fee award. Filing first is right when a warning would cost you time, evidence or forum.
Demand Letters & Pre-Litigation
How Pre-Suit Negotiations Work and When They Succeed
Pre-suit negotiation runs from the first demand to a signed agreement in four stages. It succeeds when both sides can prove their position and see what a lawsuit would cost.
Demand Letters & Pre-Litigation
Is My Claim Worth Pursuing? How a Litigator Evaluates a Case Before Filing
Worth pursuing when you can prove liability, prove damages with reasonable certainty, collect from the defendant, and net more than you would take to walk away.
Demand Letters & Pre-Litigation
My Company Has Been Threatened With a Lawsuit. What Do I Do Now?
A threat is not a lawsuit, and nothing is due in court yet. Preserve documents, check insurance, stop informal contact, assess the claim, then decide how and whether to respond.
Demand Letters & Pre-Litigation
Rule 202: Taking a Deposition Before a Lawsuit in Texas
Rule 202 lets a Texas court order a deposition before suit, to preserve testimony or investigate a potential claim. The court must find the benefit outweighs the burden.
Demand Letters & Pre-Litigation
Should I Negotiate Directly Before Hiring a Lawyer?
Often yes, for a small dispute with a counterpart you trust. But direct talks create evidence, run down the clock and can waive rights. Know the four risks first.
Before you file, or before they do
Bring the documents and the dates. The first conversation produces a map of the claim, the deadline and the options.