The legal process can be complicated, which is why seeking help from Ehline Law and our personal injury attorneys will help explain all you need to know about the procedure for bringing a civil action.
When one party files a civil action against another party, they ask the court, through a legal proceeding, to resolve the legal dispute between the parties. Unlike a criminal case, where the prosecutor brings criminal action against one party, a civil case does not involve a prosecutor. Still, two or more parties present the evidence against each other, allowing the judge or jury to decide the case surrounding these lawsuits.
Anyone can decide to start a civil action against any party they believe has wronged or harmed them. Failure in winning such a lawsuit is directly related to the procedures used to maintain and bring your claims. Below we answer questions about the most common scenarios.
Civil cases solve a broad range of issues, allowing people from all walks of life to pursue legal action, and these include:
Tort claims: Most personal injury cases come under these types of claims that proceed in the civil court. Injured victims can bring civil cases against property owners for slip and fall accidents, employers for workplace accidents, and negligent drivers for car accidents, among many other examples. Tort claims also include civil rights violation cases that injured civilians can bring against law enforcement for police brutality. Procedures vary county by county, so hire the right lawyer to bring and defeat motions and wrap up a speedy settlement.
Breach of contract: Other types of claims you have heard of involve corporations and others in breach of contract. An employee can bring a civil action against their employer for not paying their wages according to a signed agreement. Breach of contract can involve companies deciding to pursue civil action against businesses operating in the country or individuals for breaching the contract terms between them.
Equitable claims: Citizens can ask the court to issue stop or halt orders for the demolition of buildings or the sale of land. Activists often pursue such civil claims against constructors or government entities to protect a historic building from demolition.
Landlord-tenant claim: A landlord can decide to bring a civil action against a tenant who refuses to pay for the damage done to the property, exceeding the security deposit. A tenant can bring a civil action against the landlord who refuses to return the security deposit.
When you want to sue a person, you file a suit against the person using their legal name and address. It is easy to track the person’s details down through legal documents but if you don’t have the address, here is what you can do.
Send a letter to their last address with “return service requested” written on the document. The post office will return the letter to you with the latest address if the person has moved to a new location.
You can approach the local tax assessor’s office if the person owns any property to help you access the tax rolls containing property owners’ details across the country. You can search through the tax rolls that include the name of the person and the location of the property owned.
If you only know the person’s telephone number, you can look at the phone directory in your public library to get the name and address.
To sue a sole proprietorship, you would need to use the business owner’s name. For example, if you’re pursuing a civil case against Jerry Garner, who owns a financial consultancy known as ABC consultants, your defendant would be Jerry Garner dba (doing business as) ABC consultants.
You would require the names of each business partner in your lawsuit if you want to sue a partnership business.
A corporation is a legal entity, and if you want to sue one, your lawsuit should state the corporation’s legal name. The same applies to a limited partnership.
You can get the names and addresses of the officers at a corporation by requesting the Secretary of State of Business Entities through a written request along with a money order or check (fees for requesting Statement of Officers.).
You will need permission from the courts to demand justice for the harm suffered in order to maintain a legal demand. This is called a complaint for damages and it must be filed with and NOT rejected by the court clerk to remain valid through final resolution.
Filing a Complaint: The first step to bringing a civil action against another individual, business, or legal entity is to file a summons and complaint in the relevant court. You need to figure out the court you have to file the summons and complaint and the location of the court. Depending on the nature of the case, you may file it in a small claims court, District Court, or the Supreme Court.
Small claims court handles claims worth $10,000 or less, but for certain parties, the claim may not exceed $5,000. Plaintiff suffering damages up to $25,000 can file their case in the District Court, and for cases above $25,000, they must file it in the Supreme Court.
The laws and rules for how the case proceeds depend on the court you file your case. Typically, it starts with filing a claim, and you may be able to get a complaint form from the court, but if it’s not available in the court, you will have to write the complaint yourself.
A small claim court resolves most minor disputes as it is an informal and inexpensive way of resolving them. It is also quicker for resolving disputes than the other courts as it has its own rules.
To file a claim in a small claims court, the plaintiff must fill out a State of Claim and Notice form rather than file a complaint. In these courts, the plaintiff and the defendant argue their case in front of a clerk magistrate or an assistant clerk magistrate without an attorney.
Some small claims courts may allow attorneys to represent the parties in the claim. If the defendant is unhappy with the decision made in the small claims court, they can appeal it to a judge.
When you make a complaint or file a petition in any court, there is a filing fee that you must pay. The filing fees may vary depending on the case, the court, and legal history (how many claims you’ve brought in a calendar year). There may be other court costs involved, so it is important to determine the court’s costs before proceeding.
Not everyone has a good financial standing and may be unable to afford the fees or costs associated with their case. If you do not have the financial resources to pay court fees, you may ask the court to waive them or have them delayed.
There is a form for this known as an “Affidavit of Indigency” that you must fill out, and it requires details about your income and expenses to determine whether you’re capable of paying the court fees. The court will review the submitted Affidavit of Indigency and decide whether it should waive your fees.
The magistrate or court recorder may be able to grant you your waiver request. However, if they deny your waiver, you may be able to approach a judge about it.
When you file a summons and complaint against another party with the court, you must send a copy of the documents to the other party.
Once you serve the other party with a copy of your complaint and the summons, you must inform your court of your actions through the POS-040 Proof of Service form. This process is commonly referred to as “return of service.” It is a confirmation that there was a service of process.
The summons lets the defendant know the time they have to answer to the complaint filed by the petition, and failing to do so can result in a default judgment against them. Proof of service is necessary, and the court will not act on any complaint filed with them unless there is proof of service.
Typically, the defendant will have to respond to the complaint within 21 days after being served.
The first thing you should do when you receive a complaint is not to panic. You’re now a defendant in a civil case, so you should read the complaint and the summons carefully. The complaint describes why the plaintiff is bringing a civil action against you, and the summons will provide instructions you must follow.
Once you’ve read both documents, you must prepare a written response, commonly known as an “answer,” that you must file in the court mentioned in the summons. It lets the other party and the court know you wish to defend the case. It is also crucial to serve the other party with a copy of your answer.
You must provide the original complaint and your answer and pay the court filing fee when filing an answer. If you fail to file an answer, the court will give a default judgment against you. A default judgment is when the judge gives a judgment against the defendant in favor of the plaintiff without hearing the defendant’s side of the story.
When writing your answer, you must give replies to all the claims levied against you by admitting it as the truth, denying it, or denying it on the basis of insufficient knowledge of whether or not the claims are true or false.
In your answer, you may have to mention affirmative defense, which is a legal reason that you believe that plaintiff should lose even if their claims are true. For example, if the plaintiff brings a civil action after the statute of limitations expires, you can mention that as an affirmative defense. Generally, if you do not mention the affirmative defense, you cannot bring it later in action when called upon to .
You may also decide to counterclaim in your answer and seek damages from the plaintiff or file a motion to dismiss if you believe that the plaintiff failed to state a legal claim in their complaint or didn’t serve you the summons properly.
It is important to research the rules and the affirmative defenses that you can use when writing an answer. It is a critical step in the legal process, and you should give it sufficient evidence. If the plaintiff fails to meet the court deadlines or does not follow the court rules, the court has the right to dismiss the case. Dismissal with prejudice prevents the plaintiff from pursuing the same claim in the future.
You can check the court’s online website for a particular court form or visit the court and request the relevant form from the clerk or the court reporter.
What happens when a civil defendant goes on the lamb? One way to track down a civil lawsuit evader and track them down if they moved away is to send a letter to their last known address. Under your return address, write down the words “Return Service Requested. Do Not Forward.” If the scofflaw had filed a USPS address change, you’d receive the letter back with their new address. Another way is to ask the County Tax Assessor. For other factors helpful in finding an evader, hire a PI, or call a lawyer at our law office today.
Want help starting a complaint? We can work in your best interests against the named defendant or defendants to increase your chances of winning. If you suffered an injury that was not your fault, contact us at (833) LETS-SUE for a free consultation, as you may be eligible for compensation by settlement or full blown jury trial. Our attorneys will take the right steps, guide you through the legal process and discuss your case to explore your legal options.