Filing the Lawsuit
If you've determined that a lawsuit is your only option, and you've found the perfect attorney to try your case, then you're ready to get those legal gears turning. In this first stage of the lawsuit (known as the pleadings), your attorney writes a document (called the complaint) that:
- describes the basic facts of your case
- names everyone involved
- references the legal theory to back up your claim
- states what you want as the outcome (money, an agreement of action, etc.)
You (the plaintiff) and the person you are suing (the defendant) are known as the parties of the lawsuit. There can be more than one person on either side of the suit. In fact, there can be many defendants and many plaintiffs. For example, you and some of your co-workers might decide to sue the company you work for. If you all have the same complaint and seek the same outcome, this will work fine, and you will all save money on legal expenses. If not, you need to file separately. In cases where there are potentially hundreds of plaintiffs, then a class action suit may be considered (see About Class Action Lawsuits).
There are two court systems in the United States -- state court and federal court. If your case involves someone from another state (known as a diversity case) and has a value over $75,000, then it MAY go to federal court. If your case involves some sort of federal law or right (known as federal question), it can also go to federal court. Federal question is more fully defined as "jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties. Other than that, you'll probably go to state court. Unless, of course, your case involves both federal and state laws, in which case you can go to either state or federal court.
How do you determine where the suit will be filed? If you are seeking monetary compensation of less than $5,000 (in many states), you can take your case to small claims court. In small claims court, there is no jury, and you can't bring an attorney, although you can meet with one prior to the court date. The process is quick and a lot less complicated than in other courts. Since states differ in their rules on what qualifies for small claims court, check with your local Clerk of Court to find out what the requirements are in your area.
For larger cases, there are different levels of courts. These different courts have different jurisdictions. The decision of where your case will be heard is either out of your hands, because there is a legal requirement that the suit be brought to a particular court, or your attorney gets to recommend one.
If the attorney has the choice of courts, then, in addition to considering where the case should be heard (geographically), whether the case should be heard in state or federal court, and at which level it should be heard, the attorney will also consider other aspects such as how convenient the court is, who the judge is, how quickly the court can hear the case, how complicated a court's process is, etc. It is here that the attorney's knowledge and experience with local courts and judges can come in handy.
Once the complaint is completed, it is filed in the selected court. This really gets the ball rolling -- and it gets the attention of your adversary, now known as the defendant. The filed complaint has to be delivered to the defendant. This is called service of process. In addition to the complaint, the defendant will also be served a summons. The summons explains what the defendant needs to do as a result of the complaint. This whole process is usually referred to as serving the defendant.
Sometimes it is difficult to track down the defendant. When this is the case, constructive service is necessary. This means the documents can be mailed to the defendant's workplace, last known home address, and/or posted in the newspaper under the "Legal Notices" section.
The Defendant's Response
Once the defendant has been served, he must respond to your complaint within 20 to 30 days (depending on the jurisdiction) by filing responsive pleadings. One type of responsive pleading is called an answer. In that document, the defendant might totally deny the complaint, deny certain parts of it, point a finger at someone else not named in the complaint, point out technical problems in the complaint itself, etc. In other words, an answer's purpose is to somehow modify the complaint.
If the Defendant's responsive pleading isn't an answer, then it must be in the form of a motion. A motion introduces some other question to the court that the judge must rule on. Motions can be filed at any time during the trial up until the final judgement is made. The party who initiates the motion is called the mover, and the other party is called the opposing party. When one party files a motion, the opposing party can file a request for the judge to deny the motion. For example, the defendant may file a motion to dismiss if:
- There is no legally sufficient claim in the complaint that warrants the award the plaintiff is requesting
- The court lacks the subject matter jurisdiction or personal jurisdiction for the case
- The court isn't of the proper venue
- There has been a problem with the process itself
The defendant may also file a countersuit against the plaintiff, which makes the plaintiff the counter-defendant. This begins a new complaint process; however, the two cases will be heard as one lawsuit.
If the defendant's response isn't filed within the allowed time (usually 20 to 30 days, but can be less in some courts), your attorney may ask the judge to enter a default judgement, meaning that you will be awarded everything you requested in the complaint. However, judges often allow the defendant additional time to file responsive pleadings if there is a good reason for not getting it done on time.
Once the pleadings are filed, discovery begins.