This article will cover the basic procedure of filing a lawsuit in virtually any American jurisdiction. It is important to note that the procedure varies between jurisdictions (including the federal system, and the systems of individual states), and you should check with a local lawyer or court if you have any questions as to the specifics of filing a lawsuit in your jurisdiction.
In order to sue a person in the United States, a plaintiff (party bringing the lawsuit) must:
The first question to ask yourself in deciding to file a lawsuit is whether or not you actually have suffered a legally cognizable injury. If you have, you are said to have a “claim” or a “cause of action.” Determining if you have a claim is often a very difficult and complicated question, and can be a very contentious point in the early stages of a lawsuit, and on appeal.
You must also go to the appropriate court in order for the legal system to have any impact on your case. State courts generally have jurisdiction, or ability to hear a case, as long as all the parties are within the state. If a defendant is not inside the state, the plaintiff must prove that the defendant had sufficient contacts with the state in order to justify the state court’s jurisdiction.
In order for federal courts to hear a case, the federal court must either have diversity jurisdiction or subject matter jurisdiction. Diversity jurisdiction is when at least one person from both sides is a citizen of a different state. For example, if a plaintiff is from California and a defendant is from Ohio, then federal courts have diversity jurisdiction to hear the case. Federal courts have subject matter jurisdiction when a case involves a federal law.
Does it matter which court you go to? Federal courts tend to be more neutral with regards to local matters, since the judges (and jury) will not be from the local area. State courts have more expertise when state laws are involved since state courts deal with state laws more often than federal courts.
Assuming that you have determined that you have a cause of action, you must write a complaint. A complaint is a document which tells the court what the defendant has done to you, and what you want the court to do to remedy the situation. The complaint should be written in plain language, and state the facts which constitute the cause of action you have. For example, if you are suing for battery, a very simple complaint might read “on January 20, 2008, Defendant punched me in the nose, causing pain and suffering, and $1,000 in medical expenses. Accordingly, this Court should award Plaintiff $2,000 in damages.”
Note that the claims in the complaint can be contradictory. For example, in an auto accident case, the plaintiff may claim that the accident was caused by the defendant’s negligence, or carelessness, and the plaintiff may also claim that the defendant deliberately drank alcohol. Although deliberate action and negligence are contradictory, they may be in the same complaint.
Facts, however, may not be contradictory. For example, the plaintiff cannot say in one sentence that he or she has perfect eyesight, but then say that he or she must wear eyeglasses while driving. If the facts are contradictory, a judge may dismiss the lawsuit and the case will proceed no further.
Once you have written the complaint and filed it with the court, you must serve the defendant. This usually means delivering a copy of a summons and your complaint to the defendant personally. If you are unable to reach the defendant, the complaint can also be left at the defendant's home or business with someone over the age of eighteen and who knows the defendant.
After the initial service, subsequent notifications of the defendant may be made through first-class mail. Newspaper publication notice may also be used in limited situations when approved by the court.
Once these steps are completed, the lawsuit is in the system, so to speak. You should note that this is by no means the end of the legal process. It is, however, the end of the beginning.
Yes. Since corporations are considered persons by law, the same legal procedures for suing individuals apply to corporations. A corporation’s “home state” is typically the state where the company was incorporated or has its principal place of business. Legal notice should be served to the corporation’s legal department or to a corporate officer with the proper authority to receive such notices.
Yes. You can sue the federal government, state governments or local governments using the same procedure for persons. However, governments have an additional legal hurdle that must be removed in order to prevail. Governments have some immunity to lawsuits, but the immunity is not absolute. The immunity is designed to prevent private parties from controlling a government through the threat of a lawsuit.
In order to overcome the immunity, you must fill out a government claims form and file it with the proper government agency. The correct agency will depend on the government you are suing and the reason for your claim. The agency will decide whether the claim can proceed to court.
Last Modified: 07-23-2014 01:55 PM PDTLaw Library Disclaimer
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