Ultimately he or she may sue the at-fault party(ies) either in small claims court (learn more) or in some other venue of competent jurisdiction. Knowing how to file a lawsuit is more of a procedural aspect. Understanding who to sue and not be malicious is more of a substantive issue. We will cover the latter in a companion article to this one.
So many people want to cut to the chase and sue the person who crashed into the victim’s car or ran them over. But courts appreciate tenderness in the handling of potential suits. In the interest of efficient administration of justice and judicial economy, courts favor mitigation and attempt to resolve before seeking judicial involvement.
As attorneys, once we have exhausted all reasonable means of recovery without court, and at the conclusion of our investigation, it is in your best interest to file a lawsuit.
But as noted below, there may be multiple defendants. There could be parties such as the employer of the person who was driving the vehicle during working hours. Other defendants can include the manufacturer of a poorly made car. The more big pockets, the higher the chances of a pre-trial resolution and adequate recovery.
If you believe you have named all the proper parties, and are still within the legal, statutory time the time to file a government claim, or regular civil lawsuit (e.g., remains within the Statute of Limitations), you can go for it.
You still will need to determine whether to file in the limited or unlimited jurisdiction. Typically if you think all the bills and suffering in your case exceed $25,000, you file in “unlimited.”
The opposition may still bring a Walker Motion (See, e.g., Walker v. Superior Court (1991) 53 Cal.3d 257), and try and have the case bounced back to “limited jurisdiction” if they think you cannot meet the threshold burden of damages more than the minimum amount. If the case has a value of less than $10,000, the law mandates that small claims court be utilized.
The benefits of limited jurisdiction are many, assuming you don’t have a big injury. The biggest benefits are streamlined discovery, and “trial by declaration” as far as experts go. This streamlining of the lawsuit means trial costs are much less. The biggest downside is that the max you can recover in gross is $25,000. Once you have resolved the other jurisdictional issues like the subject matter, and in personam questions, the next step is preparing and then filing the lawsuit in court.
For a non-represented party, it is recommended that a Judicial Council approved “Form Complaint – Motor Vehicle Accident” be used. These more easily defeats a demurrer or motion to strike (discussed in more detail in another pending article.) The idea is to fill in the facts, and check the “Motor Vehicle” box.
The complaint is ready for filing. There are companion documents in Los Angeles like a Civil Case Cover Sheet and local cover sheets. You need to check into the state, and local rules discussed more below. You don’t want the papers to get bounced. Now you need to go to the courthouse, stand in line, and pay the filing fees.
Currently, the filing fee is in the $400.00 range. You will need to have copies of the face pages of each document that you file so that you can serve file-stamped copies of each upon the defendant. Now you have 30 or so days to serve the complaint. And then you will have a status conference if it is not served.
And if proof of service is filed, the dunning conference is ordering you to show good cause why it was not served, is called off. But let’s not get ahead of ourselves, because you are not done yet.
The next step in filing a car accident lawsuit is to prepare the documents that are required by the local rules, as well as the Civil Case Cover Sheet, and if in LA, the LASC Civil Case Cover Sheet Addendum. The Cover Sheet requires you to identify where the accident occurred, or where the defendant resides.
This ID makes sure you file the case in the right courthouse. So many plaintiffs over the years have had their case bounced on the last day for filing. And this was due to them failing to determine the correct courthouse to file the original complaint.
The LA Superior Court Website has a zip code identifier, to help you locate the proper court to file suit. In Orange County, all civil lawsuits are handled in downtown Santa Ana Court, which makes that effort easier for a newbie plaintiff. In any event, look online and make sure there are no additional forms for filing for that particular courthouse. And make sure all these documents are submitted when you present the lawsuit. Then you still need to serve and then record the proof of service once served.
At the outset, this is sort of a hat tip for new lawyers and the self-representative. Some companies specialize in serving documents, and who can hire you out a process server. Many of these document retrieval and delivery services will already know what needs to be filed and served for each local courthouse. And this will often guide an unrepresented party through a checklist of sorts.
Also, they have certainly assisted busy lawyers who may have overlooked some necessary local document that was not earmarked for filing. The last thing anyone wants is a rejected document and more fees to re-attempt a filing.
In any event, once you have filed the complaint, gotten stamped copies of face sheets, etc., copies of everything are sent out for service. Since you are a party in interest, you are deemed hostile, or biased, and thus, unless a small claims action, you need to have a disinterested third party.
Or you need an attorney to serve the documents upon the adversary under penalty of perjury. As discussed, there is a limited time window to do so. So if the defendant is evading process, you may need to make several trips to and from a court to explain to the judge what good faith efforts were done.
At some point, you may need to make a motion to have a judgment entered on your behalf. This happens will be once you have published a notice of the lawsuit in a magazine, for example. That affords the defendant every notice and opportunity required to appear and answer for their alleged tortious activity.
This is called a Motion for Default. And it is tough to get entered, even for an attorney. This is because public policy favors allowing a party every opportunity to defend themselves in person.
Assuming arguendo, the defendant was served correctly, the proof of service gets entered at the courthouse either in person or by mail. When sending copies of documents to the court, it is essential to include cover sheets of each paper filed.
Also include a self-addressed, stamped envelope. That way, you have proof that the court has everything it needs. This is especially helpful should the court later misplace or lose something, which has been known to happen. In small claims cases, as shown above, this process is streamlined.
Filing a car accident lawsuit is no walk in the park. Non represented parties should seek the help of an experienced paralegal at a minimum. In most cases, going it alone means leaving money on the table and losing valuable time.
Clients can benefit from several advantages when they opt to settle their case before it goes to trial. This benefit is precisely why many lawyers suggest resolving some cases out of court. A personal injury attorney will often recommend a settlement.
Predicting a jury decision remains impossible. And avoiding unpredictable jury decisions remains one of the most significant advantages of agreeing to a settlement.
The experiences of each juror frequently play a significant role in their decision. Many juries feel there are way too many lawsuits today. Because of this, proving up cases remains difficult. So this means that strong arguments can still face the possibility of getting absolutely nothing at trial but the disgust of an inconvenienced trier of fact..
Appearing in court for mediation, depositions, and the trial remains the client’s burden. But there is a reduced burden if there is an early settlement. Intervention is an advantage because that saves time. And this also minimizes the clients’ having to relive the situation that caused a suit.
Some people find it is challenging when they have to speak about the details of the event. After all, it can be emotionally challenging. Settling the lawsuit before trial means less worry for clients. Now testifying on the witness stand is off the table.
It is one thing to collect a cash settlement, but raising money for a trial judgment is entirely different. It can be tough to collect a judgment from doctors, lawyers, orthodontists, or other individual professional or owner of a small business. In many situations, people will hide assets and declare bankruptcy to dodge having to pay a trial judgment.
Lower attorney’s costs and fees is another big advantage of settling on a case out of court. When a case goes to trial, lawyers commonly charge fees that are higher than those cases resolved out of court. Other costs increase when cases go to trial.
In some situations, it is a requirement of the law for expert witnesses to be retained so they can testify, and this frequently involves expensive hourly fees. Many other costs can easily be avoided by settling. A few of these include copying charges, filing fees, travel expenses, and lodging.
Lawyers often suggest their clients settle before filing a lawsuit or going to trial if it’s fair. Usually, clients benefit from the advantages of an appropriate resolution. But clients must weigh the possibility of a more significant jury award before settling. Fees and costs of a trial can cause a no sum gain, even if you win.
In almost every case, it is smarter to have an attorney represent you and try and settle. Studies show that people with a lawyer tend to fare better when facing the legal system. Want to learn more about car accident lawsuits? Feel free to give us a call at (213) 596-9642.
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