You’ve been injured. Someone tarnished your good name, wrongfully wrecked your car, painted your house the wrong color or gave you a haircut that makes you look like their dog and not yours. You need to sue. What do you do to make that happen? Below is a list of things to consider.
1. Determine if you have a claim.
Do you have a claim or cause of action? When you’re contemplating suing, that’s the first question you should answer. A cause of action is a set of facts or allegations that give a person the right to sue. Many things happen in society that make us downright livid, but they don’t all amount to a cause of action. You want the law to back you up–a statute that says you have a claim. Getting kicked out of court for filing a frivolous claim is not only embarrassing, it could get you sanctioned and cost you money.
So, go to the rules of civil procedure in your jurisdiction, and determine if you have a claim. If for instance, you want to sue for personal injury, find the statute related to personal injury, read it, and make your determination. Can someone besides you be held liable for that bump on your head? Was that person negligent? Did they commit fraud? Did they otherwise do or didn’t do something they should have done that resulted in your injury? If so, go after your claim.
2. Determine if you have the money.
In some jurisdictions, filing a lawsuit isn’t cheap, especially if you’re not filing in small claims court. It might cost you $70, or it might cost $900 just to file. You might be able to waive the fees, but there are disadvantages to it. For instance, a jurisdiction might be reluctant to waive fees for a claim it feels is without merit. It might not waive fees if you have a certain level of income. It might put a lien on any reward you get in the amount of the waived fee. Then, there are related costs to consider. Courts might charge for each summons, each defendant, amending a complaint, and so on. The point is, be aware of the costs to sue before you put in all the prep work.
3. Determine the statute of limitations on your claim.
When an injury or harm occurs, a “statutory clock” starts, and you have a set amount of time to file a claim for that injury. This is referred to as a statute of limitations. It’s an actual law written down somewhere. If you don’t file the claim within that time period, you lose the opportunity to do so. Statutes of limitation vary by jurisdiction and type of civil actions. Statutes of limitations can be brutal, and judges typically have no discretion in that regard. If you file late, it won’t matter who did what to whom, how badly you were hurt, or how wrong the defendant was. You won’t be allowed to pursue your claim. Make sure you file on time.
4. Identify elements of your claim.
You’ve found that the rules of civil procedure give you a claim for, say, bodily injury and that the date for filing your claim has not passed. Yay. You can sue. Before doing that, you want to make sure that you have all the required elements of the claim. In fact, these elements aren’t separate from the claim itself. Elements are like essential ingredients. You must have all of them to successfully complete the recipe. If any one element is missing, you don’t have a claim.
“Examples: to have a cause of action for breach of contract there must have been an offer of acceptance; for a tort (civil wrong) there must have been negligence or intentional wrongdoing and failure to perform; for libel there must have been an untruth published which is particularly harmful; and in all cases there must be a connection between the acts of the defendant and damages.” Law.com
5. Match facts with elements of the claim.
This is the challenge. In most jurisdictions, you must have facts for each element of the claim. Let’s take the example from Law.com above for libel. If the elements are (1) an untruth, (2) published, and (3) particularly harmful, you must state facts showing each of these things. If you allege that the defendant, a newspaper, reported (published) that you stalked Henry’s daughter, and you didn’t stalk Henry’s daughter, but Henry read in the paper that you did and knocked you in the head, you might have a claim for libel. Why? Because each of the elements are present in your allegations. Even if you eventually can’t prove the elements, you have sufficiently alleged them. If you want to avoid a dismissal for failure to state a claim, make sure you know all the elements of the claim and that you properly allege or plead them.
6. Decide who you need to sue.
Now, you’ve got a claim that the law allows, and you’ve matched facts with the elements. Who do you sue? Some of the defendants shake out naturally. In the libel example, you know the newspaper is to blame, but there might be other defendants you can identify. Bring in everybody responsible for that bump on your head. Besides the newspaper publisher, should you sue Sally the reporter, Jeff, her editor, Henry? Probably. Once you have the elements and a real claim, even people that are tangentially responsible for that bump on your head better watch out. Keep in mind though that the more people you sue the more work that’s involved, and in some jurisdiction, the more money it costs. So, choose wisely.
7. Assure that jurisdiction and venue are proper.
Lack of jurisdiction or venue can derail a well-written and well-served complaint and summons. It can hand a plaintiff a do-over, a dismissal without prejudice. Jurisdiction and venue are the means by which a plaintiff selects the right court for the case. You don’t want to go filing a bankruptcy case in foreclosure court. Nor do you want to file a claim in a court that’s a thousand miles from where the defendant lives and from where the harm occurred simply because it’s convenient for you. As plaintiff, you must assure that the court you choose has jurisdiction, or authority, over both the defendant and the subject matter and that the complaint is filed in the proper venue or location. The location must be convenient, especially for the defendant.
8. Determine how to serve each defendant.
In every jurisdiction, the laws of civil procedure set out the rules for serving defendants in that jurisdiction. One of the main things to do is find each person you need to sue. In some instances, you may get an address the easy way. In a car accident, you may exchange contact information, or an incident report may be produced with names and addresses. When a person moves before you sue, there are ways you can find him. You can send a letter. A demand letter might confirm a defendant’s address and might even get him to come to the table to mediate before you file suit. A spoliation letter tells a defendant to preserve certain documents or things prior to the lawsuit. Like the demand letter, it too can “find” the defendant. Send any letter by certified mail. For an individual, it might also be best to use restricted certified mail. This way, you might find the defendant and know exactly where to serve him.
9. Prepare the complaint.
Closely follow the rules of civil procedure for writing the complaint in your jurisdiction. There may be inclusions required for one state that may not be for another. Don’t wing it. Since you’ve already matched up the allegations with the elements, you’ve got the bulk of the complaint down. Write your introductory statement. Follow that up with numerical statements about jurisdiction, venue, and any other inclusion your jurisdiction requires. Then, write your numerical factual allegations. The jurisdiction and venue statements might be part of the factual allegations. If you have more than one count or accusation, separate them out, and make sure that each count has its own allegations and defendant.
In our libel example, a plaintiff might have count I against the newspaper and editor for libel, count II against Sally for negligence, and count III against Henry for assault and battery. In the complaint, don’t list appellate cases. You’re not arguing your case yet. Once you’ve listed your allegations, say what you want as compensation for your injury. That’s called the prayer for relief. In most jurisdictions, you can be nonspecific. You might also need to have the complaint verified.
10. File the complaint and summons.
Writing the summons can be tricky. Oftentimes, you can wait until you get to the clerk’s office or until you’re filing online to complete the summons form. This is one of the few times where using the clerk’s form might be more useful than going it on your own. There’s a way the summons needs to be written. It’s procedural and structural and not that amenable to customization. So, find the clerk summons form online or get it from the clerk’s office, complete it with the addresses, identifying information, and so on. Attach it to the complaint. File the complaint and summons and have them served on the defendants.
11. Wait for the fireworks.
Okay, you’ve checked off all the things to do to sue. Now you’ll wait for the fireworks. If you feel you have a strong case, you might even get a feeling of euphoria and a sense of accomplishment. Your opponents will get their comeuppance for harming you. Soon, expect to see an entry of appearance and designation of addresses for defendants who are represented by an attorney. Expect also to get discovery requests, motions to dismiss, an answer and affirmative defenses, and / or even a motion for extension of time to answer. If one of your defendants doesn’t respond to the complaint, be prepared to pounce with a motion for default judgment. You’ll get to the next step in the process because you’ll have all your ducks in a row. Wait for the fireworks. Take off the kid gloves. You’re in litigation now.