File a Lawsuit

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A lawsuit is a means of compelling someone who has harmed you, in violation of the law, to compensate you monetarily for damages you have suffered. Because taking an issue to the courts can cost both parties a great deal of time and money, filing a lawsuit should only be considered if you have a legitimate dispute that cannot be solved by other means. In some situations, however, filing a lawsuit is truly the best course of action. If you've been wronged and are ready to sue the other party, here's what you need to know to get started.

Steps

Hiring a Lawyer

  1. Hire an attorney. Lawsuits can be very challenging, particularly for those unfamiliar with the legal process. Your case may need someone who has specialized legal training who can guide you and your case through a trial and towards a winning verdict. While an attorney can’t promise that you will win your case, they can significantly increase the odds of a successful outcome than if you brought the case Represent Yourself in Court (U.S.).
  2. Find the right type of attorney. Attorneys typically specialize in a certain area of the law. You must determine what type of case that you have in order to choose the right lawyer. Common types of lawsuits are:
    • A breach of contract case involves one party to a contract failing to meet their responsibilities under the agreement. For a breach of contract case, search for lawyers who focus business law and contract litigation.
    • If your case is related to an issue with your employer, such as workplace harassment, you should look for an attorney that focuses employment law.
    • If you were injured because of someone else’s Prove Negligence, and you to suffered damages because of the negligent conduct, you should look for a personal injury lawyer.[1] Personal injury cases may include car accidents, malpractice, or injuries suffered in an assault.[2] If your injury occurred while you were at work, the personal injury attorney may refer you to a worker’s compensation attorney or handle the case jointly with them.
    • If you are unsure of what type of case you have, look for a general practice attorney. These attorneys handle a variety of different kinds of cases and may handler your case herself or refer you to another lawyer.[3]
  3. Find an experienced lawyer. You can locate attorneys in a number of ways, including:
    • Referral from friend or family member who used the lawyer and was happy with how the lawyer handled the case.
    • Local and state legal associations usually have a referral service that can link you with local attorneys. You can also use state bar associations to find out if any complaints were filed against your prospective attorney. You can find a state-by-state list of attorney referral sites here: http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
  4. Review the attorneys’ background. After compiling a list of local attorneys consider evaluating their experience, credentials, and reputation in the legal field. In addition you can do the following:
    • Check with state bar associations for complaints against your prospective lawyer.
    • Read their website for its content.
    • Determine whether they attended a good law school.
    • Read reviews about the lawyer.
  5. Meet with potential lawyers. Once you identified a few experienced lawyers, meet with them to discuss your case and their services. Typically, lawyers will meet with you for free on your first visit so that they can determine whether they are interested in your case. For the meeting you should:
    • Bring copies of any relevant documents that you have.
    • Discuss the fees and services related to the case.
    • Discuss the lawyers experience in your type of case.
    • Discuss how long the process takes and what is involved.
    • Ask for a contact name and contact information for the person who will keep you informed about the case when the lawyer in unavailable.
    • Honestly share all of the information you know about your case.
    • Take notes during the meeting.[4]
  6. Hire a lawyer. If you choose to hire a lawyer, you will sign a retainer agreement that sets forth the fees and services for your business relationship. You should ask the lawyer to explain the retainer agreement to you and check for the following:
    • That the agreement is written down and signed by you and the lawyer.
    • Ask if the lawyer ever had a relationship with any of the other parties to the case.
    • Is the agreement specific about what work the lawyer will do and how much it will cost?
    • Does the agreement set forth how disputes between you and your lawyer will be handled?
    • Does the agreement describe how you can fire your lawyer and what will happen if you do?[5]

Getting Your Lawsuit Ready

  1. Make sure you have legal capacity to sue. Legal capacity is defined by each state. Generally, in order to file a lawsuit, a person must be over 18 years of age and in good mental health.
    • If you are under 18, you will need a guardian to participate in the lawsuit.
    • If you are judged to be mentally incompetent because of age, disability or illness, you will need a guardian, trustee or executor to participate in a lawsuit.[6]
  2. Make sure you have legal standing to sue. The requirements for standing are established by each state. Generally, to sue in state court a person must have been injured, or will be directly injured or harmed. There must also be a way to redress or compensate for the injury.[7]
    • For example, if a person or entity caused you physical harm, didn't hold up their end of a contract, or didn't pay you what you were owed then you may have legal standing to sue.[8]
  3. Decide in what court to file your lawsuit. The court in which you file must have subject matter jurisdiction, or the legal jurisdiction to hear the type of case you are filing. Most cases will be filed in the state where you live.[9] Federal courts hear specific types of cases, including the following:
    • Cases that arise under federal law, such as those concerning federal civil rights statutes, patent laws, antitrust laws, federal tax claims, or constitutional issues.[10]
    • Cases in which the plaintiff is suing a defendant who is a citizen of a different state or country for an amount over $75,000.[11]
    • If you are unsure whether to file in state or federal court, or which state to file the suit in, talk to an attorney.[12]
  4. Find the right venue. Venue refers to the county or judicial district within a state where the lawsuit must be filed.[13] Sometimes, multiple courts meet the venue requirements for a case. These requirements are:
    • The court is located in the county in which the defendant resides or does business.
    • The court is located in the county in which the harmful actions occurred.
    • The court is located in the county in which a violated contract was signed or was to be carried out.
    • In cases in which multiple venues are appropriate, choose the one that is most convenient to both you and the defendant, or talk with your attorney about which one they think would be best.[14]
  5. Make sure you still have time to sue. Every state has a time period by which a person must file a lawsuit. This is referred to as the statute of limitations. Different types of case have different statute of limitations. For example, in Alabama you have two years from the date of injury to file a lawsuit for personal injury but six years to file a case regarding property damage. For a list of state specific statutes of limitation visit: http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html.

Preparing and Filing the Lawsuit

  1. Determine what documents you must file. Typically, a court will require that you submit a civil cover sheet, a summons and a complaint. To determine what specific forms are required, contact the clerk in the court where you are filing the lawsuit or visit the court’s website.
  2. Draft the summons. A summons is written notice to the party being sued and the court stating that the complaint has been filed and therefore the lawsuit has commenced.[15] You should note that not all jurisdictions require that you file a summons along with the complaint.
  3. Draft the complaint. The complaint is the legal document that starts a lawsuit. Generally, a complaint must include the following:
    • A caption on the first page. The caption identifies the parties in the lawsuit, the name of the court where the lawsuit was filed, the lawsuit/case number and information identifying the type of document.
    • Your complaint should be typed, double spaced and printed on 81⁄2 x 11 inch paper.
    • An introduction to your document that includes the names of the defendants and describes who they are and how they are related to the cause of action.
    • A request for a jury. If you want your case to be heard by a jury, you must write that in your complaint.
    • Typically, courts will also expect you to include a brief explanation of why the court has subject matter jurisdiction and venue.
    • You must include a statement of facts in numbered paragraphs and in chronological order. You should also describe the conduct of the defendant, i.e. what the did or didn’t do that gave rise to your injury.
    • You should set forth your legal claims/causes of action such as negligence or breach of contract. You should also identify the specific laws that you are relying on to bring your lawsuit.[16]
    • Include your signature and date. After you have completed your complaint, you must sign and date the document. You should also type or print your name beneath your signature.[17]
    • To view a sample complaint visit: http://www.nycourts.gov/courts/6jd/forms/srforms/complaint_examp.pdf.
  4. Draft a Certificate of Service. You must create a separate document with a caption and document title of “Certificate of Service.” This document must state that you sent a copy of the complaint to the defendant and describe the how and where the defendant was “served” with the complaint. Your certificate of service should be included with your complaint.[18]
  5. File the complaint with the appropriate state court. You should file your complaint in the appropriate jurisdiction and venue as discussed above. You should follow the rules for your specific court or contact the court clerk and ask what you need to do in order to properly file your lawsuit. Generally courts require the following:
    • Bring at least one original and two copies to the court clerk.
    • Submit the documents to the court clerk for filing. The clerk will stamp all of the documents as filed, return the copies to you and keep the original.
    • Pay a filing fee. Most courts will require that you pay a filing fee to commence an action. You should bring the fee in the appropriate form to the court at the time of filing. You may also be able to file for a waiver of the fee.[19]
    • Keep two extra copies of the complaint for your records.
  6. Serve the complaint on the defendant. After you file the complaint, you must legally provide a copy to the defendant in a manner set forth by state law. It is imperative that you properly serve the defendant or your lawsuit may be deemed invalid.[20] Generally, methods for service of process include:
    • Personal service, which means that a person over the age of 18 personally hands the document to the defendant and fills out an affidavit describing the service. Depending on the state, process servers can include friends, family members, professional process servers, or law enforcement personnel.
    • Service by mail. Many jurisdictions allow you to serve parties to a lawsuit by mail. Typically, you would send the document by U.S. mail, “return receipt requested,” so that you can demonstrate for the court that the document was delivered to the residence of the defendant.[21]
  7. File proof of service. After serving the petition, most courts require that you file a document demonstrating proof that the defendant was properly served. It is very important that you submit this document because it is often used to start the time period for when the defendant has to file a response.

Succeeding in Court

  1. Participate in the discovery process. Once a lawsuit is filed, the case enters the “discovery” phase. During this pre-trial phase of the case, parties seek facts from each other and non-parties who have information about the case.
    • Attorneys for the parties will send written questions and requests for documents. Your lawyer should meet with you to discuss these requests and draft your response. You may have to sign a verification swearing that you answered the questions truthfully.[22]
    • Attorneys will take depositions of individuals under oath. Most often, attorneys will question people who they may call as a trial witness. Witnesses must answer questions under oath and in front of a court reporter.
  2. File pretrial motions. Before the start of the trial, attorneys will file motions with the court to try and have certain evidence kept out of trial or to have the case dismissed in its entirety. The judge will typically rule on these motions before the trial begins.
  3. Choose a jury. If either party requested a jury trial, one of the very first events in the case is the selection of the jury. It is important to note that opposing attorneys can agree on a jury member, but their only really power is to strike jurors that they think will hurt their case. For instance, in a medical malpractice case, injured parties don’t want medical personnel on their jury because they want their expert explaining the medical condition.[23]
    • A person becomes a member of the jury when neither party strikes them as a potential juror.
  4. Give opening statements. During an opening statement, the attorneys for both parties lay out the facts of their case and tell the judge or jury what they will prove during the trial. You can view sample opening statement at http://www.nysd.uscourts.gov/file/forms/representing-yourself-at-trial
  5. Present and cross-examine witnesses. Both parties will have the opportunity to present witnesses to support their version of the case. The opposing party will then have the opportunity to cross-examine the witnesses and attempt to show that they are not credible or that they are biased.[24]
  6. Give closing arguments. After both parties have presented their cases, each side will have the opportunity to give final arguments on the case. The burden to prove that there is a legally actionable case supported by facts is on the plaintiff in a civil case or on the prosecutor in a criminal case. Attorneys for each party will reiterate the important facts of their case.
  7. Receive a jury verdict. Once both parties finish their closing arguments, the judge or jury will take some time to make a final decision on the case. The jury will decide whether the plaintiff proved his or her case, and if so the amount of damages that they are due. Once the verdict is rendered, the trial is over.[25]

Video

Tips

  • Ask your attorney questions about the legal process if you don't understand what's going on. Even good lawyers sometimes make mistakes, so make sure you know what your lawyer is doing on your behalf.
  • This information is based on US law. If you live outside the US, research how to file a lawsuit in your country.
  • Be sure to tell your lawyer every detail you can think of about the case. Anything might be important. Remember, whatever you tell your attorney is confidential.
  • When you go to court, dress respectably. This is shows the judge your respect him or her, and communicates the idea that you take the proceedings seriously.
  • Make sure you understand your lawyer's payment schedule. In some cases, an attorney will work on a contingent fee. This means they don't get paid unless they win or settle the case, and they will take a portion of the award or settlement. In other cases, a lawyer will charge by the hour. Most lawyers' time is worth at least $100 per hour or more if they are very experienced. You will also be responsible to pay for all expenses, such as travel time, copying documents, paying expert witnesses, etc.

Warnings

  • Don't pick a lawyer based on price. A bad lawyer may cost you far more money in the long run than a good one, even if the good one charges more. Conversely, the most expensive lawyers are not always the best ones.
  • Once you've gotten started on legal proceedings, don't sign anything related to the case unless your lawyer says it's okay.
  • Any time you file a lawsuit, there is a chance you could lose. The case could be dismissed or the other side could win. This is why you shouldn't file a suit unless you really need to, because if you lose, you've wasted a lot of time and money.
  • The information provided on this website and in this article is for general information only. The information provided here is not legal advice, should not be considered or relied on as legal advice. This article provides information on how to locate an attorney and general information about civil case process.

Related Articles

Sources and Citations

  1. ↑ http://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/injury.html
  2. ↑ http://www.alllaw.com/articles/nolo/personal-injury/kinds-of-cases.html
  3. ↑ http://www.alllaw.com/topics/legal
  4. ↑ http://www.cccba.org/community/find-a-lawyer/get-prepared.php
  5. ↑ http://www.lawyerquality.com/article_retainer_agreement/
  6. ↑ http://www.courts.ca.gov/9616.htm
  7. ↑ https://www.law.cornell.edu/wex/standing
  8. ↑ http://www.law.cornell.edu/wex/standing
  9. ↑ http://litigation.findlaw.com/legal-system/federal-vs-state-courts-key-differences.html
  10. ↑ http://www.nolo.com/legal-encyclopedia/subject-matter-jurisdiction-state-federal-29884.html
  11. ↑ http://www.nolo.com/legal-encyclopedia/subject-matter-jurisdiction-state-federal-29884.html
  12. ↑ http://www.nolo.com/legal-encyclopedia/personal-jurisdiction-where-sue-defendant-29560.html
  13. ↑ http://www.nolo.com/legal-encyclopedia/state-courts-venue-rules-govern-29656.html
  14. ↑ http://www.nolo.com/legal-encyclopedia/state-courts-venue-rules-govern-29656.html
  15. ↑ http://nationalparalegal.edu/public_documents/courseware_asp_files/researchLitigation/PreTrialPractice/Summons.asp
  16. ↑ http://www.nysd.uscourts.gov/file/forms/pro-se-litigants-manual
  17. ↑ http://www.nced.uscourts.gov/pdfs/proseGuide.pdf
  18. ↑ http://www.nced.uscourts.gov/pdfs/proseGuide.pdf
  19. ↑ http://www.scscourt.org/self_help/civil/lawsuits/plaintiff.shtml#where
  20. ↑ http://family.findlaw.com/divorce/filing-and-serving-the-divorce-dissolution-petition.html
  21. ↑ http://www.scscourt.org/self_help/civil/lawsuits/plaintiff.shtml#where
  22. ↑ http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery.html
  23. ↑ http://www.kkcomcon.com/doc/ksympatheticjurylaw360.pdf
  24. ↑ http://www.azalaw.com/pubs/zavitsanos/D.pdf
  25. ↑ http://www.americanbar.org/content/aba/groups/public_education/resources/law_related_education_network/how_courts_work/verdict.html
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