2.1 Pre-Trial

1. Counsel the client or potential client.

• Identify the client’s objective. Is the goal to get more time to move out or to defeat the eviction entirely?
• Explain the possible eviction timeline and the eviction process.
• Advise on possible exceptions and defenses.
• Advise on the likelihood of success.
• Explain the possibility of being responsible for court costs if eviction prevention is unsuccessful.
• Explain the appeal process and requirements.

2. Consider filing an affirmative suit in advance of the landlord’s eviction suit.

• Is bankruptcy a viable option?
• Can a case be brought in state or federal court? To secure an injunction preventing the eviction or to argue for a dismissal or a stay on the basis of lis pendens, the case should be filed before the landlord files the eviction case. However, it can be filed after a notice to vacate has issued.
  • Failure to accommodate tenants with disabilities1  or evictions that are discriminatory based on protected class status may violate the federal Fair Housing Act.2
  • Failure to complete pre-eviction administrative process gives rise to a § 1983 cause of action for certain subsidized tenants.3
• Does your client have a potential ownership interest in the property that requires litigation?
  • Consider filing an affirmative lawsuit to quiet title or contest ownership in state court before the eviction lawsuit is filed to secure an injunction or lis pendens exception.

3. Explore settlement.

• Ensure that any pre-trial negotiations are consistent with defense strategies and client objectives.4
  • Because Section 8 voucher holders and other subsidized tenants evicted for a serious lease violation can lose their assistance or be barred from federally subsidized housing in the future, settlement may be a desirable option for some clients.5
• Negotiate in light of the landlord’s position and concerns.
  • What is the landlord’s price (rent, costs) for dismissal of eviction?
  • If eviction is for “no cause”, will the landlord agree to an extension of the move-out date and under what conditions?
  • If the tenant violated the lease, is the landlord willing to dismiss if proper terms are negotiated?
  • Is the landlord concerned that the eviction may have been procedurally defective? If so, will the landlord agree to a consent judgment with an extended executory date to avoid the need to refile the eviction?
• To be enforceable, settlement agreements must be in writing or recited and recorded in open court.6  It is wise to pre-draft a consent judgment so that it contains language specifying that there are no findings of fact and no judgment of eviction. It is also important to ensure that the judgment says “consent” and that the fact that it is a consent judgment is reflected on the record, if in a court of record.

4. Analyze client’s potential exceptions and affirmative defenses.7

• Review the lease and notices.
• Review applicable regulations if the tenant resides in federally subsidized housing.8
• Note that even where an exception or defense may not defeat an eviction, it may provide settlement leverage.9

5. Answer the Landlord’s petition.10

• Apply for in forma pauperis status by filing an Application to Proceed In Forma Pauperis if appropriate.11
• To preserve the right to a suspensive appeal, the answer must be verified (i.e., sworn to by client before notary) and must specially plead affirmative defense(s) entitling tenant to retain possession.12
• Generally, the judicial control doctrine should be pleaded, if applicable, because it is indisputably an affirmative defense.
• File the verified answer with the clerk of court prior to trial and serve the landlord.13

6. Prepare for Trial.

• Remind the tenant that failure to appear in court will likely result in an eviction judgment.14
• If the eviction has been filed in a court of record, draft direct and cross examinations, prepare exhibits to submit into the record, and review possible evidentiary issues.15
• Identify evidence (witnesses and documents) needed for trial.
• Issue subpoenas or notices for discovery to obtain evidence needed for proof of defenses.
• Apply for continuances if evidence cannot be timely produced for trial.16
• Preliminarily assess any potential grounds on which an eviction judgment (if ordered) could be appealed.
• Depending on the forum, inform client that a suspensive appeal of a judgment of eviction will likely require posting a bond.17

Explain that the landlord may seek eviction on new grounds during appeal.18

• 1Eviction may be proper if the reasonable accommodation was requested after landlord filed a petition of eviction. See Guste Homes Resident Mgmt. Corp. v. Thomas, 2020-0110 (La. App. 4 Cir. 07/29/20), 302 So. 3d 1181; see also Mazzini v. Strathman, 2013-0555 (La. App. 4 Cir. 04/16/14), 140 So. 3d 253 (upholding eviction where tenant failed to prove a disability in accordance with “the Fair Housing Amendments Act of 1988 or the ADA, or that the landlord knew of her alleged disabilities”).
• 242 U.S.C. § 3601, et seq.
• 3For further discussion, see Sections 1.7 (traditional public housing), 2.8–2.9 (Section 8), 3.1.4 (multifamily programs), 3.2.4–.5 (rural rental housing) of the chapter on Federally Subsidized Housing.
• 4It is highly advisable to get any settlement agreements in writing.
• 5Sometimes a consent judgment is improperly treated as an eviction, so make sure the judgment language serves the needs of the subsidy recipient.
• 6La. C.C. art. 3072.
• 7For further discussion, see Section 4 (exceptions) and Section 5 (affirmative defenses).
• 8For more complete discussion of these tenants’ rights, see the chapter on Federally Subsidized Housing.
• 9Tenant may have a diminution of rent claim. See La. C.C. art. 2715.
• 10If you choose not to file a verified answer stating affirmative defenses, be sure you have advised client that they will be waiving their right to suspensively appeal the eviction.
• 11For more complete information on this process, see this manual’s chapter on in forma pauperis procedures.
• 12La. C.C.P. art. 4735.
• 13There is no statutory timeline for filing as long as it is prior to trial. Keep in mind that because most evictions are in a court of limited jurisdiction, that the uniform rules applicable in district court do not apply.
• 14La. C.C.P. art. 4732.
• 15As a practical matter, eviction hearings may be more informal. You should insist on the formalities of a trial if there is any possibility you will need to appeal from a court of record.
• 16In most cases, there will not be enough time to issue subpoenas. A motion to the court for a continuance due to the necessity of the subpoena and explanation of the nature of the evidence and its importance may be required.
• 17The in forma pauperis affidavit does not forgo the requirement of a suspensive appeal bond in a motion for suspensive appeal. La. C.C.P. art. 5185(B).
• 18Arguably, res judicata prevents the landlord from bringing an action to evict for other lease violations that were known at the time of the first eviction judgment, but that the landlord did not raise. La. R.S. 13:4231.