In personal injury and tort law, a fictitious defendant is an individual that can’t be named or identified by the victim prior to the start of trial. Courts usually refer to a fictitious defendant as John or Jane Doe. This is often done when the plaintiff wishes to have legal proceedings commenced, but cannot readily identify one or some of the defendants to be held liable.

When Is a Fictitious Defendant Necessary?

A plaintiff may choose to submit a claim involving a fictitious defendant for different reasons. For instance, the plaintiff may be seeking to meet the statute of limitations (SOL), which is the filing deadline for a case. Medical malpractice claims often have shorter filing period, so the person might name a fictitious defendant in their filing. That way, they can file the lawsuit before the party is fully named.

Another reason to name a fictitious defendant is because identifying which party is at fault can be difficult. For instance, in a medical malpractice claim, both the doctor and a nurse may have handled a patient who is suing for malpractice. Suppose that the plaintiff knows the identity of the nurse, but not the doctor. Here, the patient may need to name the doctor as a fictitious defendant.

The filing might include language stating, "Dr. Doe was the plaintiff’s treating surgeon. Dr. Doe’s identity is not known despite the plaintiff’s efforts at identifying the person. Fictitious defendants are also common in negligence cases involving joint liability (multiple persons being liable).

How Is a Fictitious Defendant Identified?

Eventually, the plaintiff will need to identify the fictitious defendant(s). This usually happens during the discovery portion of the trial. The plaintiff is required to work with diligent and deliberate speed in obtaining the identity of a fictitious defendant. Failure to do so can result the case’s statute being barred.

On the other hand, if the defendant’s counsel refuses to provide discovery information that might lead to identification of a fictitious defendant, it might cause a delay. Such delays cannot be held against the plaintiff, provided the plaintiff had made a good faith effort to secure the person’s identity. Once all the defendants are properly named, the personal injury or tort lawsuit can proceed.

Do I Need a Lawyer for Help with Personal Injury Issues?

Fictitious defendants can sometimes create some issues at the beginning of a trial. You may need to hire a personal injury lawyer if you need to file a case. Your attorney can instruct you on how to file if you don’t know the identity of any of the potential defendants. Also, your lawyer can provide you with guidance for any other legal questions that might arise in the course of trial.