Whether it’s due to an accident, genuine misunderstanding or misconduct, at some point many people may find themselves wondering whether they should sue a wrongdoer, and if so, how they might go about it. The particulars will depend on the case and the laws in the state where a lawsuit would be filed, but there are basic steps to understand the overall process.
Consult an Attorney
Potential plaintiffs should consider hiring an attorney to represent them. Litigation is a very technical field, with procedural rules on top of the substantive issues to be addressed.
It can be worth it to consult an attorney, even if a plaintiff decides not to hire a lawyer for whatever reason — perhaps because they decide to file a suit in small claims court, says W. Andrew Arnold, a South Carolina litigator who has been in practice more than 30 years.
Litigation attorneys can quickly assess major substantive and procedural issues a plaintiff will face during a lawsuit. Armed with this information, a plaintiff can make better decisions — including whether they should pursue the case at all.
[Related:What Does Hiring a Lawyer Cost?]
Identify the Timeline
Plaintiffs must file a lawsuit within a time frame set out by law, known as the statute of limitations. A plaintiff who waits even one day past that deadline can be barred from any recovery.
For example, in many states a plaintiff must file a lawsuit relating to a personal injury no later than two years after they’ve been injured, while three states only give a plaintiff one year.
Gather the Facts and Evidence
Plaintiffs aren’t expected to have all of the facts and evidence they will need to win their lawsuit before they file a suit. And they can continue to investigate up to and even during a trial. However, the more evidence they have going in, the better off they will be.
Write the Complaint
When filing a lawsuit, the document that constitutes the lawsuit is called the complaint. In the complaint, the plaintiff identifies the parties involved and states the relevant facts of their case.
Then, they state the “causes of action,” the legal bases for why the plaintiff believes they are entitled to financial compensation or other relief. A cause of action sets out the elements that must be met for the plaintiff to win their case, Arnold says.
As an example, in a lawsuit alleging negligence, the plaintiff must explain:
— The defendant owed some duty of care to the plaintiff.
— The defendant breached that duty of care.
— The breach harmed the plaintiff in some meaningful way.
Therefore, the complaint should include factual allegations relating to each element, Arnold says. The complaint then states what the plaintiff wants to receive if they win the lawsuit. In most cases, a plaintiff is suing for “damages,” money to compensate them for the harm caused by the defendant. Plaintiffs can also ask for other types of relief, such as an injunction that prevents a defendant from taking an action.
Small Claims Court May Be an Option
Plaintiffs may want to consider filing a lawsuit in a small claims court. Small claims cases are usually resolved at a fraction of the time and cost of a lawsuit in a general court setting. Plaintiffs represent themselves in court, and small claims judges are typically more forgiving when it comes to legal procedure.
States have different caps on the limit for potential recovery for a small claims case. In a California small claims court, individuals can sue for damages up to $12,500. In South Carolina, the limit is typically $7,500, while in Nebraska, the limit is $3,900.
[Related:What Are Irreconcilable Differences?]
File the Complaint
In most instances, the plaintiff will file the lawsuit and a summons in a state courthouse within the county where the plaintiff resides, Arnold says. Wherever the lawsuit is filed is where it will be litigated.
Some types of cases can only be litigated in federal court. Additionally, some business contracts require any related lawsuit to be filed within a particular state.
Serve the Complaint
Once the lawsuit is filed, the plaintiff must serve (in other words, deliver) the complaint and summons to the defendant. A plaintiff must follow the correct procedure and then file a proof of service with the court.
It is crucial that the plaintiff successfully serves the complaint on the defendant because once they do so, the defendant has a limited number of days to file a response. If the defendant doesn’t file a response in time, the defendant is in default and the court will deem all of the plaintiff’s allegations as true. The only remaining question is how much money the defendant must pay, Arnold says.
Conduct Discovery
Once the defendant has filed a response, the parties will begin “discovery,” the formal process through which the parties request documents and information relating to the case, Arnold says.
Discovery includes depositions, exchanges of written questions and answers, and production of documents.
Be Open to a Settlement
Since most plaintiffs sue for damages, lawsuits often end in an out-of-court financial settlement. Even if the compensation is for less money than the plaintiff had hoped for, a settlement can resolve the case at much less time and expense than if the plaintiff went to trial.
In South Carolina, parties must participate in a mediation session no later than 300 days after the filing. While the parties aren’t required to settle the case, these sessions resolve a lot of lawsuits, Arnold says.
From Motions to Trial
As soon as the plaintiff begins the trial, both parties may file motions that can be related to particular issues or even go to the very substance of the lawsuit. For instance, a defendant may file a motion to dismiss the lawsuit or a motion for summary judgment.
[Related:What Is a Gag Order?]
Be Ready to ‘Hurry Up and Wait’
Litigation is driven by deadlines. At every stage, each side has a specific number of days to file a motion, respond to discovery and so on. There may also be delays due to the court’s schedule or requests from either side.
This can be difficult for plaintiffs, especially if the case may be the most important thing in their lives. It’s one reason plaintiffs settle — so they can move on.
Arnold estimates that in South Carolina, cases take about a year before going to trial and even longer if the plaintiff wants a jury trial.
At the end of the day, a plaintiff can get their day in court. But they have to wait for it.
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How to Sue Someone originally appeared on usnews.com
