Difference between revisions of "File a Civil Lawsuit"
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#* For example, if someone owes you money, you should ask the person for the money repeatedly before suing them for it, and consider setting up a payment plan with them if they are having financial difficulty. If the payment plan works out, you will likely get the money that is owed to you must faster than if you sued for it. | #* For example, if someone owes you money, you should ask the person for the money repeatedly before suing them for it, and consider setting up a payment plan with them if they are having financial difficulty. If the payment plan works out, you will likely get the money that is owed to you must faster than if you sued for it. | ||
#* Lawsuits can be time consuming and very expensive to get involved in, so you should try anything you can to work out your issue, and only file a lawsuit as a last resort. | #* Lawsuits can be time consuming and very expensive to get involved in, so you should try anything you can to work out your issue, and only file a lawsuit as a last resort. | ||
| − | # Establish that you can file a lawsuit. <ref>Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 3</ref> Many companies, such as banks, insurance companies, and companies that provide services (cable/cell phone etc.), include mandatory arbitration or mediation provisions in the contracts you sign with them. | + | # Establish that you can file a lawsuit. <ref name="rf1">Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 3</ref> Many companies, such as banks, insurance companies, and companies that provide services (cable/cell phone etc.), include mandatory arbitration or mediation provisions in the contracts you sign with them. |
#* These provisions mandate that you cannot sue the companies because you instead must resolve any dispute through one of the out-of-court dispute resolution methods. | #* These provisions mandate that you cannot sue the companies because you instead must resolve any dispute through one of the out-of-court dispute resolution methods. | ||
| − | #* Therefore, if you have signed a contract that has a mandatory Alternative Dispute Resolution clause, you will not be able to bring a lawsuit. <ref | + | #* Therefore, if you have signed a contract that has a mandatory Alternative Dispute Resolution clause, you will not be able to bring a lawsuit. <ref name="rf1" /> |
| − | # Verify that you have a valid legal claim. <ref | + | # Verify that you have a valid legal claim. <ref name="rf1" /> Before you file a lawsuit, you need to do some preliminary investigation to make sure that the law is on your side. If you do not have a valid legal claim, any lawsuit you bring will be dismissed by the court, and you will have wasted time and money. |
#* For example, if someone “promised” to give you $100 as a gift, you legally would not be able to sue them for the $100 if they didn’t give it to you, because the court will not force someone to give something for free. | #* For example, if someone “promised” to give you $100 as a gift, you legally would not be able to sue them for the $100 if they didn’t give it to you, because the court will not force someone to give something for free. | ||
#* Similarly, if you are involved in a car accident with someone, but you were not injured and your car was not damaged, you will not have a valid claim because you do not have any damages, even if you know that the accident was not your fault. | #* Similarly, if you are involved in a car accident with someone, but you were not injured and your car was not damaged, you will not have a valid claim because you do not have any damages, even if you know that the accident was not your fault. | ||
| − | # Consider the strength of your evidence. Even if you do have a valid legal claim, you should assess the strength of your case before you file a lawsuit. To determine whether you have a strong case, consider the following: <ref | + | # Consider the strength of your evidence. Even if you do have a valid legal claim, you should assess the strength of your case before you file a lawsuit. To determine whether you have a strong case, consider the following: <ref name="rf1" /> |
#* Whether you have evidence: you should consider whether you can prove what happened in a court of law. For example, if you need witnesses, were any present, and will they be able to testify at trial? If you need papers or documents to support your claim, do you have them, or can you get them before the trial? | #* Whether you have evidence: you should consider whether you can prove what happened in a court of law. For example, if you need witnesses, were any present, and will they be able to testify at trial? If you need papers or documents to support your claim, do you have them, or can you get them before the trial? | ||
#* Whether your opponent has a convincing story: you should consider whether or not your opponent has a convincing story that conflicts with yours. If so, you should consider how you will convince the court that your story is better. | #* Whether your opponent has a convincing story: you should consider whether or not your opponent has a convincing story that conflicts with yours. If so, you should consider how you will convince the court that your story is better. | ||
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#* To find an attorney near you, consider talking to friends and family members who have used an attorney before. Find out who they hired, for what type of service, and if they would recommend the attorney. | #* To find an attorney near you, consider talking to friends and family members who have used an attorney before. Find out who they hired, for what type of service, and if they would recommend the attorney. | ||
#* You can also find an attorney by checking online reviews. Many websites offer free reviews of businesses. Some places to look for lawyer reviews include: [http://lawyers.findlaw.com/lawyer/practice/Immigration-&-Naturalization-Law Find Law], [http://www.avvo.com/review-your-lawyer Avvo] and [http://local.yahoo.com/ Yahoo Local]. | #* You can also find an attorney by checking online reviews. Many websites offer free reviews of businesses. Some places to look for lawyer reviews include: [http://lawyers.findlaw.com/lawyer/practice/Immigration-&-Naturalization-Law Find Law], [http://www.avvo.com/review-your-lawyer Avvo] and [http://local.yahoo.com/ Yahoo Local]. | ||
| − | # Decide whether you should file your case in state or federal court. <ref | + | # Decide whether you should file your case in state or federal court. <ref name="rf1" /> The law establishes limits on which courts have “jurisdiction” (power) to hear and decide a case. You must file your lawsuit in a court that has jurisdiction over your case. |
#* Generally, you should file a case that deals with a state law in state court. The majority of cases, including personal injury cases, landlord-tenant cases, breach of contract, divorce, and probate matters, a state law claims. | #* Generally, you should file a case that deals with a state law in state court. The majority of cases, including personal injury cases, landlord-tenant cases, breach of contract, divorce, and probate matters, a state law claims. | ||
#* There are a few types of cases that should be filed in “federal court” instead of state court. If your case is based on a federal law, you can sue in federal court. A few examples of cases under federal law include suing a police officer under the federal civil rights statute (called a 1983 case) or suing because a government organization has unlawfully discriminated against you. | #* There are a few types of cases that should be filed in “federal court” instead of state court. If your case is based on a federal law, you can sue in federal court. A few examples of cases under federal law include suing a police officer under the federal civil rights statute (called a 1983 case) or suing because a government organization has unlawfully discriminated against you. | ||
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#* In some states, you must sign your complaint in the presence of the clerk or get it notarized. Check your state court’s website to see if this applies to you. | #* In some states, you must sign your complaint in the presence of the clerk or get it notarized. Check your state court’s website to see if this applies to you. | ||
#* You do not need to make an appointment to file your complaint. However, you should make sure that you go to file the complaint during the regular business hours of the court. | #* You do not need to make an appointment to file your complaint. However, you should make sure that you go to file the complaint during the regular business hours of the court. | ||
| − | # Serve the defendant. <ref>http://www.usmarshals.gov/</ref> The court cannot locate a party for you. You must have a current physical address, such as a home or work address, in order to sue someone. This is because the rules of procedure require that you provide a defendant notice of the lawsuit and give him or her an opportunity to respond. Most states allow you to serve a defendant by mail, or by personal service, through the County Sheriff or a process server. Some things to consider when deciding where and how to serve the defendant: | + | # Serve the defendant. <ref name="rf2">http://www.usmarshals.gov/</ref> The court cannot locate a party for you. You must have a current physical address, such as a home or work address, in order to sue someone. This is because the rules of procedure require that you provide a defendant notice of the lawsuit and give him or her an opportunity to respond. Most states allow you to serve a defendant by mail, or by personal service, through the County Sheriff or a process server. Some things to consider when deciding where and how to serve the defendant: |
#* Your state may require personal service of the initial Complaint: if personal service is required, you will need to have the County Sheriff or a process server serve the defendant. When serving via the County Sheriff, the Clerk’s Office and/or the Court will take care of making the arrangements. | #* Your state may require personal service of the initial Complaint: if personal service is required, you will need to have the County Sheriff or a process server serve the defendant. When serving via the County Sheriff, the Clerk’s Office and/or the Court will take care of making the arrangements. | ||
#* Personal service may or may not be offered by your County Sheriff’s Department. If the Sheriff offers personal service, there may be a fee. Call the County Clerk or the Sheriff’s Office to determine if process service is offered, and what the fee is. | #* Personal service may or may not be offered by your County Sheriff’s Department. If the Sheriff offers personal service, there may be a fee. Call the County Clerk or the Sheriff’s Office to determine if process service is offered, and what the fee is. | ||
#* Your state may require a signature from an appropriate person when serving the defendant. Check with your state’s Rules of Procedure for service or with an attorney in order to determine if the process server may leave a copy of the Complaint at the defendant’s home or work, or if a signature is required. | #* Your state may require a signature from an appropriate person when serving the defendant. Check with your state’s Rules of Procedure for service or with an attorney in order to determine if the process server may leave a copy of the Complaint at the defendant’s home or work, or if a signature is required. | ||
#* If allowed for the initial Complaint and Summons, service by mail is usually sufficient and reliable, and is usually less expensive. However, if you have any reason to believe the Defendant may attempt to hide from service, it may be best to pay for personal service. | #* If allowed for the initial Complaint and Summons, service by mail is usually sufficient and reliable, and is usually less expensive. However, if you have any reason to believe the Defendant may attempt to hide from service, it may be best to pay for personal service. | ||
| − | # Gather facts about your case through discovery. <ref> Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 5</ref> After you file your lawsuit, you will need to gather the evidence you will use to prove your claim. Typically, you can request evidence from the other party (called “discovery”). <ref>Federal Rules of Civil Procedure Rule 26</ref> Discovery allows the parties to get investigatory information on the case from the opposing party. Discovery includes: | + | # Gather facts about your case through discovery. <ref name="rf3"> Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 5</ref> After you file your lawsuit, you will need to gather the evidence you will use to prove your claim. Typically, you can request evidence from the other party (called “discovery”). <ref name="rf4">Federal Rules of Civil Procedure Rule 26</ref> Discovery allows the parties to get investigatory information on the case from the opposing party. Discovery includes: |
#* Requesting documents from your adversary, | #* Requesting documents from your adversary, | ||
#* Sending “interrogatories,” (or written questions), to your adversary that must be answered under oath in writing, | #* Sending “interrogatories,” (or written questions), to your adversary that must be answered under oath in writing, | ||
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#* Essentially, this type of motion argues that there are no issues of the facts, so the case can be decided by the judge on the basis of the law only. | #* Essentially, this type of motion argues that there are no issues of the facts, so the case can be decided by the judge on the basis of the law only. | ||
#* Discuss the possibility of a motion for summary judgment with your attorney. If you do not have an attorney and your opponent files a motion for summary judgment, you should argue in response that there are facts that are disputed, and those facts are what will determine the outcome of the case. | #* Discuss the possibility of a motion for summary judgment with your attorney. If you do not have an attorney and your opponent files a motion for summary judgment, you should argue in response that there are facts that are disputed, and those facts are what will determine the outcome of the case. | ||
| − | # Settle your case before trial. <ref>Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 6</ref> Even after filing a lawsuit, you can still try to work things out with your opponent. In fact, most cases actually “settle,” or a worked out, before trial. Settling with the opposing party is a good idea for many reasons including: | + | # Settle your case before trial. <ref name="rf5">Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 6</ref> Even after filing a lawsuit, you can still try to work things out with your opponent. In fact, most cases actually “settle,” or a worked out, before trial. Settling with the opposing party is a good idea for many reasons including: |
#* Settling will save you time: trials are often long and drawn out, therefore, settling now means that as a plaintiff, you will receive money sooner rather than later. | #* Settling will save you time: trials are often long and drawn out, therefore, settling now means that as a plaintiff, you will receive money sooner rather than later. | ||
#* Settling is easier than trial: as someone representing yourself, going all the way through the trial can be stressful due to the complex and unfamiliar nature of the legal system, settling will save you from having to navigate all the way through a trial on your own. | #* Settling is easier than trial: as someone representing yourself, going all the way through the trial can be stressful due to the complex and unfamiliar nature of the legal system, settling will save you from having to navigate all the way through a trial on your own. | ||
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#* Prepare to show the mediator the evidence that supports your claim. This will allow the mediator to get an idea of whose side of the case is “better,” and, even though the mediator cannot force you or your opponent to accept a settlement, they may be able to discuss the chances each party would have at trial. | #* Prepare to show the mediator the evidence that supports your claim. This will allow the mediator to get an idea of whose side of the case is “better,” and, even though the mediator cannot force you or your opponent to accept a settlement, they may be able to discuss the chances each party would have at trial. | ||
#* Remember that the goal of mediation is come up with a settlement that works for both parties. Don’t go into mediation with a mindset that you have to “win” or “punish” your opponent. Instead, you should be prepared to work collaboratively with the mediator and your opponent to come up with a creative solution to your issues. | #* Remember that the goal of mediation is come up with a settlement that works for both parties. Don’t go into mediation with a mindset that you have to “win” or “punish” your opponent. Instead, you should be prepared to work collaboratively with the mediator and your opponent to come up with a creative solution to your issues. | ||
| − | # Arbitrate your dispute. <ref>Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 5</ref> In addition to mediation, you may consider participating in “arbitration” to resolve your lawsuit. Arbitration is similar to a trial, but is more informal. | + | # Arbitrate your dispute. <ref name="rf6">Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 5</ref> In addition to mediation, you may consider participating in “arbitration” to resolve your lawsuit. Arbitration is similar to a trial, but is more informal. |
#* In an arbitration proceeding, you and your opponent present oral testimony, documents, and other evidence to a neutral third party (the arbitrator) who then makes a decision based on both sides case, usually called an “award.” | #* In an arbitration proceeding, you and your opponent present oral testimony, documents, and other evidence to a neutral third party (the arbitrator) who then makes a decision based on both sides case, usually called an “award.” | ||
#* Unlike mediation, an arbitrator’s award is binding on the parties, so whatever the arbitrator decides goes. | #* Unlike mediation, an arbitrator’s award is binding on the parties, so whatever the arbitrator decides goes. | ||
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#* You should prepare for arbitration the same way that you would prepare for trial (see below for more information). | #* You should prepare for arbitration the same way that you would prepare for trial (see below for more information). | ||
=== Going to Trial === | === Going to Trial === | ||
| − | # Understand who will decide your case. <ref>Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 10</ref> If you do proceed to trial, your case will either be decided by a judge or a jury. Usually, the parties decide whether to have the case decided by a judge or jury. | + | # Understand who will decide your case. <ref name="rf7">Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 10</ref> If you do proceed to trial, your case will either be decided by a judge or a jury. Usually, the parties decide whether to have the case decided by a judge or jury. |
#* In some cases, you may want to ask for a judge and not request a jury.If you are representing yourself, a trial before a judge is likely to be more informal, and you will not have to worry about the jury’s impression of you in the courtroom. | #* In some cases, you may want to ask for a judge and not request a jury.If you are representing yourself, a trial before a judge is likely to be more informal, and you will not have to worry about the jury’s impression of you in the courtroom. | ||
#* You should ask for a jury if your case has “emotional appeal” and you think the jury may be sympathetic to your cause. However, keep in mind that this can backfire if someone on the jury doesn’t like you. | #* You should ask for a jury if your case has “emotional appeal” and you think the jury may be sympathetic to your cause. However, keep in mind that this can backfire if someone on the jury doesn’t like you. | ||
#* Keep in mind that the trial will have all of the same “parts,” regardless of whether you are in front of a judge or a jury. | #* Keep in mind that the trial will have all of the same “parts,” regardless of whether you are in front of a judge or a jury. | ||
| − | # Give an opening statement. <ref>Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 11</ref> The “opening statement” is a type of speech given at the start of trial. It is your first opportunity to introduce yourself and your case. If you filed the lawsuit (and therefore are the plaintiff), you will give your opening statement first, followed by the defendant. | + | # Give an opening statement. <ref name="rf8">Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 11</ref> The “opening statement” is a type of speech given at the start of trial. It is your first opportunity to introduce yourself and your case. If you filed the lawsuit (and therefore are the plaintiff), you will give your opening statement first, followed by the defendant. |
#* In your opening statement, you should give an overview of what your case is about and what your evidence will prove. You should begin proving your case by telling the jury what evidence is in your favor and what happened to you. | #* In your opening statement, you should give an overview of what your case is about and what your evidence will prove. You should begin proving your case by telling the jury what evidence is in your favor and what happened to you. | ||
#* Keep in mind that you cannot state your own opinions in an opening statement, and if you do so you could be reprimanded by the judge. | #* Keep in mind that you cannot state your own opinions in an opening statement, and if you do so you could be reprimanded by the judge. | ||
| − | # Call and examine your witnesses. <ref>Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapters 12 and 13</ref> During the presentation of the case, you will call your own witnesses, and “examine” them (this is called direct examination). You will also have the opportunity to ask questions of your opponent’s witnesses (this is called cross examination). To prepare for calling and examining your witnesses, make sure that they all agree to be present at the trial. | + | # Call and examine your witnesses. <ref name="rf9">Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapters 12 and 13</ref> During the presentation of the case, you will call your own witnesses, and “examine” them (this is called direct examination). You will also have the opportunity to ask questions of your opponent’s witnesses (this is called cross examination). To prepare for calling and examining your witnesses, make sure that they all agree to be present at the trial. |
#* For direct examination, you should prepare a notebook with an outline of what you want to ask the witnesses. Ask questions that will encourage the witnesses to talk, instead of “yes” and “no” questions. To get comfortable with questioning witnesses, you can meet with them to practice beforehand. | #* For direct examination, you should prepare a notebook with an outline of what you want to ask the witnesses. Ask questions that will encourage the witnesses to talk, instead of “yes” and “no” questions. To get comfortable with questioning witnesses, you can meet with them to practice beforehand. | ||
#* For cross examination, realize that you probably won’t get that much useful information, and limit or completely forgo examining the opposing witnesses. Only cross examine the opposing witnesses if you can get evidence from them that supports your version of events or discredits their trustworthiness as a witness. | #* For cross examination, realize that you probably won’t get that much useful information, and limit or completely forgo examining the opposing witnesses. Only cross examine the opposing witnesses if you can get evidence from them that supports your version of events or discredits their trustworthiness as a witness. | ||
#* Always be kind and polite to any witnesses, even during cross examination. Arguing with or badgering a witness (even an opposing witness) looks bad to the jury, and could get you in trouble with the judge. | #* Always be kind and polite to any witnesses, even during cross examination. Arguing with or badgering a witness (even an opposing witness) looks bad to the jury, and could get you in trouble with the judge. | ||
| − | # Deliver your closing argument. <ref>Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 14</ref> A closing argument is delivered at the end of a trial, after all of the evidence has been presented and all witnesses have been called. A closing argument is the last chance you will have to address the judge or the jury. | + | # Deliver your closing argument. <ref name="rf10">Represent Yourself in Court: How to Prepare and Try a Winning Case, Paul Bergman & Sara Berman, chapter 14</ref> A closing argument is delivered at the end of a trial, after all of the evidence has been presented and all witnesses have been called. A closing argument is the last chance you will have to address the judge or the jury. |
#* Closing arguments are usually between 10 and 20 minutes, but, if the case is extremely complicated, they can be much longer, in some cases up to one hour. | #* Closing arguments are usually between 10 and 20 minutes, but, if the case is extremely complicated, they can be much longer, in some cases up to one hour. | ||
#* Unlike an opening statement, which can be written well in advance of the trial, a closing argument will be based on the events of the trial, so to prepare an effective closing argument, make sure that you take notes throughout the trial. | #* Unlike an opening statement, which can be written well in advance of the trial, a closing argument will be based on the events of the trial, so to prepare an effective closing argument, make sure that you take notes throughout the trial. | ||
