Frequently Asked Questions

• What is a “special appearance”?

A special appearance is simply Texas’ unique name for a motion to dismiss for lack of personal jurisdiction. It is made on a “sworn motion” that must be filed before any other pleading or motion filed by the out-of-state defendant. It is governed by specific rules and procedures which, if not properly followed, can result in a waiver of important jurisdictional rights.

• What should I look for in deciding whether to hire a Texas jurisdiction lawyer to file a special appearance and challenge a Texas court’s personal jurisdiction over me or my business?
  

Two things: Experience handling special appearances and a proven track record of success. Personal jurisdiction is a fairly complicated area of the law involving constitutional due process, so there is no substitute for knowledge and experience. Determining whether a Texas court can assert jurisdiction over an out-of-state defendant is often a fact-intensive inquiry. It also requires application of constitutional law principles and case law from not only the Texas Supreme Court but also the United States Supreme Court. So this generally is not an area of law in which to get an attorney’s feet wet. The procedures for mounting a jurisdictional challenge in Texas are fraught with potential pitfalls, any one of which can potentially result in a waiver of the jurisdictional challenge. An out-of-state defendant therefore needs an attorney who has handled a significant number of these types of cases, and who has shown that he can win them, even if it means having to go to a court of appeals to get the correct decision. 

• Good legal representation can be costly. How much would it cost me or my business to mount a jurisdictional challenge?
  

Not as much as you might think. At Saunders, Walsh & Beard we are able to leverage our experience in this specialized area of the law, which enables us to complete the necessary tasks more efficiently. This, in turn, keeps costs down for our clients. 

In terms of the exact cost, every case is different. The cost of prosecuting a special appearance in any particular case hinges on a number of factors, including the complexity of the case, the number of claims and parties involved, the amount of discovery (relating solely to the jurisdictional issues) that might be required, and the number of constitutional issues that have to be raised and briefed.

While the cost of mounting a jurisdictional challenge varies from case to case, a decision not to assert such a challenge by filing a special appearance can turn out to be more costly. If jurisdiction is not contested, then the lawsuit must be defended on the merits, in an inconvenient forum away from home. Defending a case on the merits includes having to participate in discovery, which alone can be very costly and time-consuming. Proceeding directly to a defense on the merits of the case can therefore be much more costly than a successful jurisdictional challenge. It also includes risk in terms of the ultimate outcome — an outcome that will often be placed in the hands of a Texas jury. A successful challenge to jurisdiction on the other hand, can stop litigation dead in its tracks. It means never having to step inside a Texas courtroom to have the case tried against you or your company. So the cost of contesting jurisdiction often has to be weighed against the cost of not making such a challenge. Often it is much more economical to get out of the litigation before it ever heats up.

• What if the trial judge rules against me on my jurisdictional challenge? What happens then?
  

One of the advantages of the special appearance procedure is that the ruling on it is subject to an immediate (interlocutory) appeal to one of Texas’ 14 intermediate courts of appeals. That means you can appeal the trial court’s ruling without first having to go to trial. In fact, if the proper procedures and deadlines are followed, the filing of an appeal can automatically stay the trial of the entire case until the appeal is finally resolved. Consequently, there can be strategic advantages to pursuing a special appearance as well. 

• Can my own attorney in my home state, who I am already familiar with, represent me or my business in the Texas case and file the special appearance on my behalf?
  

While it can be done, that is usually not the best way to proceed, nor is it usually the most economical approach. Unless the attorney is licensed to practice law in Texas, he will not be entitled to appear before a Texas court to file and prosecute a special appearance unless he first obtains permission from the court, which entails a separate procedure. But the greater concern is the attorney’s lack of familiarity with the Texas court system and the unique procedures involved with the special appearance. The better approach, if you desire to keep your attorney involved, is for that attorney to work closely with us in protecting your interests.