9 How Do I Begin My Lawsuit?

Paula had expected to leave her attorney’s office with her attorney on the way to the courthouse to file the complaint starting her lawsuit. But Paula was glad when she learned from her attorney instead that they would be taking a few preliminary steps first to be sure that litigation was necessary. Paula believed that she had a strong cause and that she needed a lawsuit. But Paula wanted to be sure. And when her attorney filed her lawsuit, Paula wanted it to make a difference, to have an impact. Paula didn’t want to be just another person with a gripe. She needed authentic relief and wasn’t interested in starting a lawsuit unless she believed that she was about to get it.

Beginning

Beginnings are important. How you start things out often determines how they end up. Make a good beginning to your lawsuit, and you’ll more likely find yourself enjoying a better resolution. Make a poor start, and you may spend the whole lawsuit trying to catch up and recover, ending up with a poor ending. Starting a lawsuit involves filing a written complaint in court. But wise litigants usually take several preliminary steps before starting their lawsuit with a court filing. One of those steps is to ensure that you’ve retained competent counsel, already addressed in the prior chapter. Consider some other preliminary steps below, followed by the actual start of litigation with the court filing.

Timing

The timing of your lawsuit is important. If you jump in too early with a rushed, poorly prepared, and inadequately backed complaint, you’ll regret it. You could lose your lawsuit. Yet if you wait too long to file your lawsuit, the statute of limitations may bar it. Generally, every cause of action has a time within which you must file it. Statutes define those time periods, which are different for different claims or causes of action, and different from state to state. Your state, for instance, may have a two or three-year period within which you must file a tort claim and a three, five, or six-year period within which you must file a breach-of-contract claim. Beware, though, that some periods can be as short as a few weeks or months, such as to give notice to a municipality of a defective highway or sidewalk that caused an injury, or to sue an employer over a job demotion or termination in retaliation for a whistleblower’s report. Know the period within which you must file your lawsuit or give statutory notice to the opposing party. Don’t rush, but don’t wait too long, either.

Investigation

You start a lawsuit with investigation. You may well believe that you have a legal claim to enforce, based simply on your own observation. But until you investigate, you won’t know the full story. You won’t know the circumstances surrounding your observation that may make your claim stronger, weaker, or nonexistent. Investigation at a minimum includes gathering available police reports, incident reports, personnel records, medical records, academic records, business records, or other documentation that may inform and guide your claim. Online searches of social media and other publicly accessible sites can also produce surprising evidence. Investigation should also include interviewing witnesses with first-hand observations, preferably in a form on which you can rely, such as a writing or recording. Investigation can also include background checks for criminal history, license discipline, prior lawsuits, and the like. In some cases, investigation can also include retaining a private investigator for surveillance or other activities to uncover hidden information. Investigate before alerting the other side of your intention to pursue a claim, and you may discover evidence that would otherwise disappear as soon as you gave notice of your intention.

Evidence

As soon as you realize that you have a legal claim to assert, you should also identify, acquire, and preserve your own evidence of that claim. Indeed, if you fail to preserve your own evidence within your control when you know that the evidence is material to your claim, the other side may accuse you of deliberately destroying evidence. Courts can impose sanctions for the deliberate or careless destruction of evidence, or its spoliation. Sanctions for losing or destroying evidence can include presumptions that the evidence was against you or even the dismissal of your claim. Your attorney will help you identify the evidence that your claim or defense needs. Your evidence may certainly include your own recollection, which you might want to record in a confidential chronology you prepare for your attorney. You should preserve any statements or communications from others that support your position. And you should preserve any record, whether printed or electronic, relating to your matter, as well as any physical item, videos, or digital images. Gather everything you may need to prove your claim or defense. 

Demand

The party holding the claim usually makes some form of demand before filing the lawsuit. You may not need to file a lawsuit if you make an effective, convincing, well-documented demand. A demand often takes the form of a letter or similar writing with attached exhibits. See the example demand letter in the appendix at the back of this guide. If your claim involves an insurance recovery, then the insurer will need full documentation of your claim before even considering paying it. Why not provide that documentation at the outset, even before filing your lawsuit? Cases where the claimant does not make a demand usually involve one of two situations: (1) a demand would trigger adverse action such as the destruction of evidence, raiding of accounts, conversion of personal property, or rush to the courthouse to be the first to file a lawsuit; or (2) a demand would be useless, falling on deaf ears, the respondent having already effectively rejected it. Let your attorney help you make a proper demand in the spirit of settlement, without inappropriate admissions. 

Negotiation

In many instances, negotiation is also appropriate before filing your lawsuit. Whether to negotiate may depend in large part on the opposing party’s response to your demand. Don’t worry about the dollar figure or other specifics with which the opposing party responds. First responses are often flat rejections. Instead, listen carefully to the response for a willingness to entertain negotiations. And if the willingness is there, then make an appropriate effort. Big, important, complex, and highly contentious matters sometimes settle before either party files a lawsuit. Make the effort before litigation freezes the parties in positions of fixed opposition. See the later chapter on settlement. 

Complaint

The party holding the claim, called the plaintiff, prepares a written and signed complaint to file with the court clerk, starting the lawsuit. See the example complaint in the appendix at the back of this guide. Your attorney will draft, sign, and file the complaint, only asking you to also sign if the court rules require or encourage an attestation, such as in a divorce case, or the attorney believes it advantageous. The complaint begins with a case caption with the party names, court, case number, assigned judge’s name, and name, address, and telephone of the plaintiff or plaintiff’s attorney. The complaint then proceeds in numbered paragraphs to recite the parties, the court’s jurisdiction, and the court’s venue. The complaint then alleges the material facts supporting the claim, followed by the legal counts, concluding with a prayer for relief. The facts are judicial admissions. You are generally stuck with them once your complaint alleges them, although you may have later opportunities to amend your complaint to conform to the evidence and to tweak your legal claims. While the court rules call the complaint a short and plain statement of the case, your attorney should exercise substantial skill in crafting a compelling narrative. Plaintiffs win and lose cases based on their complaint. 

Summons

Once you or your attorney file the complaint, the court generally issues a summons to serve on the defendant. The summons is a court document officially calling the defendant to court. A summons generally states the period within which the defendant must answer or respond to the complaint and the consequences for failing to do so. The summons also reflects the court’s address, the names of the parties, and the name and address of the plaintiff’s attorney. While the court clerk will generally sign and stamp the summons to indicate its official status, the plaintiff or plaintiff’s attorney generally prepares the summons for the clerk to execute. Attorneys generally get multiple copies of the summons in the event of the need to chase after multiple defendants to effect service.

Forms

Your state civil justice system, a private nonprofit or public self-help resource, or the specific court in which you file your lawsuit may offer court forms. Attorneys handling cases in the courts of general jurisdiction don’t generally use forms, other than for the summons and subpoenas. Attorneys instead draft their own pleadings and court papers, like the examples in the appendix at the back of this guide. The forms tend to be blunt instruments. You have only limited options and space on a form to give a proper account of your case. In a case of any complexity or detail, a form generally won’t do. But in the lower district or small-claims court, and in the specialty probate or family law courts, the forms may be perfectly adequate, even designed specifically for the common papers parties need to file in those courts. Both unrepresented parties and attorneys may use the forms in those courts, especially if the state court administrative office has designed them and the clerks of the court expect their use. Be wise in your use of court forms if you remain unrepresented. They may serve you adequately for some purposes but not others.

Judge

The moment of the court clerk accepting your complaint and issuing the summons is when you learn who is your assigned judge. Some rural county courts are small enough that they only have one judge, in which case you already know. But many courts have multiple judges, in which case random assignment is the established practice. You don’t get to pick and choose your judge, once you choose your court. Judges, though presumptively unbiased, can influence case outcomes. If your case involves a bench trial rather than a jury, the judge will decide your case outcome if you don’t settle it. If you don’t know your judge’s disposition, political affiliation, or other affinities, practices, and tendencies, then consult your attorney for that assessment. And ask your attorney about moving to recuse the judge if ethics rules disqualify the judge from serving on your case, due to a personal connection with the case, the parties, the attorneys, or some other clear indication of the appearance of potential bias or conflict of interest. 

Service

Someone must then serve the summons and complaint on the defendant. If you’ve already had negotiations with the defendant and know the defendant’s attorney, your attorney may simply convey the summons and complaint to that attorney, asking for an acknowledgment of service. Otherwise, court rules and statutes for serving the summons and complaint generally prohibit you, the plaintiff party, from serving it and instead require another competent adult to do so. Rules for service are technical, sometimes requiring in-person service, other times permitting or necessitating certified or registered mail service, service by posting, or even service by advertising, if the defendant attempts to dodge service. The person accomplishing service must then sign and file with the court proof of having served the summons and complaint on the defendant. The service date generally triggers the period within which the defendant must respond, as the proof of service proves to the court. 

Response

In a manner of speaking, your lawsuit hasn’t truly begun until the defendant responds to it. Until then, your lawsuit sort of hangs in the air. Court clerks won’t generally be giving it any attention. Nor, in most cases, will the assigned judge. The public has access to your complaint unless you take special steps to have it sealed. But unless your case has some particular public interest about it, you won’t likely see any media report. Your lawsuit truly takes life only when the defendant receives it and responds to it. The following chapter addresses how a defendant defends a lawsuit, including addressing the first response. Suffice it here to say that you should generally expect a timely answer to your complaint or motion to dismiss it, filed in court and simultaneously mailed or emailed to you or your attorney, as the court rules permit and require. Once the defendant appears in that fashion, the parties must generally serve on one another, by mail or email, all court papers that the parties file in court. 

Default

If the defendant does not timely respond after service of your summons and complaint, you may have the opportunity to default the defendant. A default is a court paper you prepare, sign, and file indicating that the defendant has failed to timely respond. If the court accepts the default, and the defendant fails to effectively object to it, the court may enter a default judgment establishing the defendant’s liability in your case. If your damages are for a sum certain, such as on an established account, then the default judgment may include your damage award. If instead your damages are uncertain, such as in a personal-injury case, then the court may hold a hearing on damages at which the defendant can appear to challenge the award. A defendant may also move to set aside the default if having good cause for doing so, such as improper service or an extraordinary extenuating circumstance. If you are the defendant, beware defaulting. You could lose your case before it even starts.

Reflection

On a scale from one to ten, how prepared do you feel to file your lawsuit? Do you have any further investigation you should do to be sure that you know all the material facts and won’t be surprised and embarrassed by them later? Have you identified, gathered, and preserved all the evidence, both good and bad? Have you considered making a demand on the opposing party? Would a demand trigger adverse action? What response would you expect to a demand? Do you believe that you might be able to enter into settlement negotiations before filing your lawsuit? Would it help the opposing party consider settlement if you documented your claim for the opposing party now, before filing your lawsuit? Has your attorney shared a draft of the complaint with you, for your review and correction? Do you expect to have to sign your complaint? Are you sure of your complaint’s accuracy, on penalty of potential sanctions or judicial admissions imposed against you? Are you able to locate the defendant for service of the summons and complaint? Do you believe the defendant will dodge service? Do you believe the defendant may ignore service such that you may be able to take a default?

Key Points

• The beginning of a lawsuit can set the tone for its outcome.

• Don’t rush to file your lawsuit, but don’t delay beyond the limitation.

• Investigate your case thoroughly before filing your lawsuit.

• Identify, gather, and preserve all material evidence, avoiding losses.

• Consider making a well-documented demand before filing a lawsuit.

• Consider entertaining settlement negotiations before filing.

• Your lawsuit begins with your filing of a complaint in court.

• The court then issues a summons to serve on the defendant.

• You may find court forms helpful if you are unrepresented.

• The court also assigns the judge from a random draw of judges.

• Arrange service of the summons and complaint on the defendant.

• Expect the defendant to respond within the court rule’s period.

• You may default a defendant who fails to timely respond.

Read Chapter 10.