Jan 4, 2019

Car Accidents | Filing a Lawsuit

lawsuit form or document in business office
lawsuit form or document in the business office

It is relatively straightforward actually to file a lawsuit in a car crash case. In some straightforward situations, some accident victims will elect to go in propria persona (also known as in pro-per depending upon fed or state jurisdiction.). So this means that the victim usually represents him or herself in the negotiation process.

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.

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 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.

  • How Do I Determine Limited or Unlimited Jurisdiction and Statute of Limitations Compliance?

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 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.

  • 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 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.

  • Preparation and Filing of the Mandatory Companion Documents.

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.

  • What is Service of The Lawsuit?

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.

What is a Motion for Default?

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 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.

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.

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.