It is relatively straightforward actually to file a lawsuit in a car crash case. In some specific situations, accident victims will elect to go in propria persona (also known as in proper, depending upon fed or state jurisdiction.). So this means that the victim usually represents him or herself in the negotiation process.
Ultimately they 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.
What Are The Various Steps in Suing?
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 after 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.
How Do I Determine Limited or Unlimited Jurisdiction and Statute of Limitations Compliance?
If you believe you have named all the appropriate parties and are still within the legal, statutory 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.
There are many benefits of limited jurisdiction, 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 personal questions, the next step is preparing and filing the lawsuit in court.
How Do I Prepare the Court Summons and Complaint?
For a non-represented party, it is recommended that a Judicial Council-approved “Form Complaint – Motor Vehicle Accident” be used. These more easily defeat 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 must 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 copies of the face pages of each document 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.
Preparation and Filing of the Mandatory Companion Documents.
The next step in filing a car accident lawsuit is to prepare the documents required by the local rules, 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 proper courthouse. So many plaintiffs over the years have had their issues bounced on the last day for filing. And this was due to their failure 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.
What is the Service of The Lawsuit?
At the outset, this is a hat tip for new lawyers and the self-representative. Some companies specialize in serving documents and can hire you as a process server. Many document retrieval and delivery services will already know what needs to be filed and done 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; thus, unless a small claims action, you need to have a disinterested third party.
Or it would help if you had 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 the process, you may need to make several trips to and from a court to explain to the judge what reasonable faith efforts were made.
What is a Motion for Default?
At some point, you may need to motion to have a judgment entered on your behalf. This will be once you have published a notice of the lawsuit in a magazine, for example. That affords the defendant every information 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 known to happen. In small claims cases, as shown above, this process is streamlined.
Is Filing a Car Accident Lawsuit Easy?
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 settle their case before it goes to trial. This benefit is why many lawyers suggest resolving some issues 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 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 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.
There Remains No Certainty of Collecting Judgments
It is one thing to collect a cash settlement, but raising money for a trial judgment is entirely different. It can be tough to order a review from doctors, lawyers, orthodontists, or other individual professionals or owners of small businesses many situations, people will hide assets and declare bankruptcy to dodge having to pay a trial judgment.
Decreased Lawyer Costs and Fees
Lower attorney costs and fees are another significant advantage of settling a case out of court. When a case goes to trial, lawyers commonly charge higher fees than those resolved out of court. Other costs increase when cases go to trial.
In some situations, the law requires expert witnesses to be retained so they can testify, which frequently involves expensive hourly fees. Many other costs can easily be avoided by settling. 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 wiser 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 call us at (213) 596-9642. A superior, award-winning lawyer is ready to help you understand and achieve justice for your serious injuries.
Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients. We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.
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