7 Where and Whom Do I Sue?

Georgina hadn’t wanted to sue at all. Georgina only did so because she couldn’t do without the job that she had lost and that the litigation looked like it might get her back. Her employer had, after all, violated her employment rights and contract. But Georgina didn’t want her friends to know, in case they thought less of her for suing. And if she could avoid the local court personnel, several of whom she knew, from finding out, then all the better. So Georgina was surprised and relieved to find out that her attorney was recommending a federal lawsuit in the big city two hours away rather than a lawsuit in the local county courthouse. Maybe her friends and acquaintances wouldn’t find out after all, and she could go quietly on with her small-town life.

Location

Location can mean a lot to litigation. Lawyers talk about litigating on one’s home court, much as a basketball team might prefer to play a game on their home court rather than as a visitor at an away game. Wouldn’t you rather that your lawsuit was in your hometown rather than in the hometown of the individual or entity you’re about to sue? Litigating at home or nearby can save travel time. Litigating at home may also mean that you, your attorney, or your witnesses know the judge, court personnel, jury pool, and local customs and lore, all potential advantages when you’re trying a civil case. And jurors, just like anyone else, can favor their own, while holding hidden prejudices against those from out of town who don’t know or share their accents, humor, sympathies, affinities, and interests. You’d generally rather file and try your case in or near your hometown, if you had the choice. Or you might find reasons to file your case elsewhere. But the point is that you don’t entirely have the choice. 

Jurisdiction

When you file a lawsuit, you must do so in a court that has the authority to hear and decide it. The law calls that authority jurisdiction. The court in which you file must have jurisdiction over, or power to decide, the subject matter of your case. You cannot, for instance, file a breach-of-contract claim in a family law court or a personal-injury claim in a probate court. Both those claims would generally be in a civil court of general jurisdiction, not a specialty court. The court in which you file must also have jurisdiction over, or power to control, the person or entity you sue. You cannot, for instance, file a claim in your local state court against a person who has never had any contact with your state. You’d generally have to file your lawsuit somewhere that the defendant resided, frequented, or did business. Consult your attorney about the options you have as to which courts in which locations have jurisdiction over your case.

Venue

When you file a lawsuit, you must also do so in a court the location of which bears some relationship to the dispute and is otherwise convenient. The law calls that proper location venue. The court in which you file must be a proper and reasonably convenient venue for your case. You cannot, for instance, file your motor-vehicle-accident case in a county courthouse far away from where the accident occurred and where you and the defendant driver reside. You’d generally have to file your accident case in the county where the accident occurred or where you or the defendant reside. But if that location, say, where the accident occurred, is terribly inconvenient to both sides who were all from out of town, then you may end up in the more-convenient county where one or both of you reside. Consult your attorney about the proper venue for your case and whether that venue is reasonably convenient or you should file your case closer to you. 

Shopping

A point of these rules about the court in which you may file your lawsuit and the court in which you must not is to prevent forum shopping. You’d probably like to pick not only your court but also your judge, jury, and bailiff, too. But so would the other side. Rules on jurisdiction and venue help parties not only get into a properly constituted court in a reasonably convenient location but also not to face hometown bias or other prejudice when you get there. We presume that justice is blind, able to equally judge both the weak and powerful, the insider and the outsider. Don’t expect to have a too-favorable judge or jury. If you do, the other side will have the right to disqualify that decision maker for the appearance of bias or conflict of interest. Let your attorney help you get your lawsuit into the best court available to you and then advocate for you there fairly. And if you see bias or conflicts of interest at play favoring the other side, then get your attorney’s help challenging them. Parties deserve a level playing field in the contest of litigation. 

Federal

You and your attorney may have one other decision to make having to do with which court in which to file your lawsuit. Every state in the nation has two parallel justice systems, one federal and the other state. Your lawsuit may qualify for federal court if it involves federal law. Your lawsuit may also qualify for federal court if all plaintiff and defendant parties are from different states and the case has a value greater than $75,000. You may thus have a choice between filing your lawsuit in state court or federal court. That choice can make big or small differences in the court’s location, the judge’s political affiliation, accountability, and disposition, the makeup of the jury pool, the court procedures and schedule, and even the availability of attorney representation. If you choose state court over federal court when both are available to you, your opposing party may have the authority to remove your case to federal court. Listen to your attorney’s recommendation as to whether to choose state or federal court, if you have that option.

State

The state courts conduct the bulk of the nation’s litigation. Only about one out of every twenty lawsuits is in federal court rather than state court. Chances are thus good that your lawsuit will be in state rather than federal court, whether you like it or not. You may, though, have a choice of state courts. Generally, states establish courts in each county. You may thus have a choice of filing your lawsuit in one county or another county, depending on your state’s venue statutes and rules. If so, your choice of which county in which to file your lawsuit may mean more than how far you must travel to get to the courthouse. Choosing among different county courts can lead to differences in the politics or particular disposition of the judge or jurors, the court’s schedule, and even some of the court’s procedures. Listen carefully to your attorney as to which county court to choose, if you have options. 

Parties

The one who files the lawsuit also gets to initially choose the parties. A party is an individual or entity participating directly in a lawsuit. We call them parties, even though lawsuits are not at all parties. As already indicated above, the party filing the lawsuit is the plaintiff, while the party responding to the lawsuit is the defendant. Plaintiffs may join together with other plaintiffs having claims arising out of the same transaction or occurrence. Indeed, a plaintiff party may seek on those terms to intervene in and join your lawsuit even if you didn’t invite them to do so. Plaintiffs may also name multiple defendants. Defendants then have the opportunity to counter-claim against the plaintiffs in the same lawsuit. Defendants also have the opportunity to bring in third parties, referred to as third-party defendants, to answer for the liability that the plaintiff alleges against the defendant. See the example answer, defenses, and third-party complaint in the appendix at the back of this guide. Don’t be surprised if your simple little lawsuit ends up involving multiple additional parties. Consult your attorney both as to the party or parties whom you should sue and the additional parties whom you may find joining your lawsuit. 

Alignment

Some lawsuits aren’t as clear-cut in the parties’ interests as other lawsuits. Sometimes, it isn’t exactly clear whether a plaintiff and defendant have opposing interests in conflict or instead have overlapping interests to accomplish the same or similar ends. Generally, courts only have authority to hear genuine disputes, not to decide matters where the parties are all on one side and perhaps even conniving together. You generally need an opposing party with different interests than your own, if the court is to have power to hear and decide your matter. A court’s decision also generally only binds the parties to the lawsuit, not unnamed individuals or entities who had no chance to argue otherwise. If, for instance, you are trying to resolve in your favor a property right that you claim, you would need to name as defendants all those who claim or might claim an adverse interest in the same property. Consult your attorney if you have questions over the parties necessary to join in your lawsuit and as to their proper alignment as plaintiffs or defendants. 

Individuals

You may also need to determine whether you are suing as an individual on your own behalf or instead suing on behalf of a minor child or mentally incompetent person for whom you are responsible. Recognize whether you are advocating your own individual interests or instead the interests of someone close to you. You may also need to determine if you are suing on your own individual behalf or for a business entity you own and control. Depending on the nature of your claim, either you individually, your business entity, or both of you may have a legal claim to assert. The same is true regarding the defendant you plan to sue. An individual may have committed the wrong against you and thus may be an appropriate defendant. But if the individual was acting in the course of employment or as an agent for another person or entity, then your claim may be against the individual, the employer or other entity, or both. Recognize whom you should sue. Consult your attorney regarding your particular circumstances.

Entities

Corporate entities can be appropriate parties to a lawsuit, whether as a plaintiff or defendant. The law generally treats corporate entities as if a legal person, with similar rights and obligations in litigation as an individual would hold and owe. The success of your lawsuit, though, may very well depend on the specific corporate entity you name. Name the wrong corporate entity, and you’ll have wasted your time and trouble. Making things even more complex, a single business entity can operate under several assumed names, while a single business operation can involve several different entities, each responsible for different functions. A business venture can also involve parent companies, subsidiaries, successors, and assigns. You and your attorney may need to review contracts or other documents, search state corporate records, and make other investigations to ensure that your lawsuit names the correct corporate entity or entities. 

Collectibility

If you are pursuing a claim against the opposing party for money damages, then you should hope that your claim is against a party either having liability insurance covering your claim or having sufficient non-exempt assets to pay for your claim. You may need to name different individual or corporate defendants against whom you have claims, based on their ability to pay as much as on their relative responsibility for your losses. You do yourself no good suing a defendant who has no insurance nor any assets or income to pay you, if all you’re seeking is payment. Courts don’t pay judgments; parties pay judgments. Don’t waste your time and money going through useless litigation. The judgment that you win may require the defendant to pay. You’ll likely have garnishment and execution powers to help you obtain payment. And the judgment may last a decade or more, depending on the law of your jurisdiction, giving you plenty of time to collect on the judgment. But uncollectible defendants have ways of disappearing. In general, sue only collectible parties. 

Reflection

Where, referring to the city or town, would you most like to file and pursue your lawsuit? In what court would you prefer to see your lawsuit filed, referring to state or federal court? What would be your most convenient court, as to its geographic location? Do you sense that you’d win a better decision in one court or location over another court or location? Does your lawsuit have political implications that might play out better or worse in one county or court than another? Does your case have any federal claims to it that could get your case into federal court? Are you suing on your own behalf or for someone else? Are you asserting your individual rights and interests or the interests of a business you own and control? Are you suing an individual, an entity, or an individual and the entity for which the individual acted? 

Key Points

• The location in which you file your lawsuit affects important factors.

• The court you choose needs authority or jurisdiction over your case.

• The court you choose must also be a proper and convenient venue.

• Laws and rules discourage shopping among courts for biased views.

• Federal courts entertain federal law and significant interstate lawsuits.

• State courts decide many more cases, compared to federal courts.

• You need to name the correct parties and align them properly.

• Be sure whether you are suing individually for yourself or for another.

• Also be sure whether you are suing individuals or corporate entities.

• If seeking damages, prefer suing a collectible individual or entity.

Read Chapter 8.