Assuming that negotiations fail or the lawyer has chosen to not even attempt negotiations (which sometimes happens), it’s time to begin litigation. The way an actual lawsuit begins is with the filing of a document called a Complaint. As the name suggests, the complaint sets forth both in factual and legal terms the wrongdoings of the defendant about which the plaintiff complains. The ‘plaintiff’ in a legal action is the person or entity filing the complaint and the ‘defendant’ is the person or entity alleged to have committed the wrongs.
WHERE TO FILE THE COMPLAINT IN A PERSONAL INJURY CASE
Complaints can be tricky and it’s important to have a lawyer who knows civil law well in order to ensure that everything that is required in order for the civil action to survive is alleged within the document. In state court matters, the complaint must be filed in the county where the defendant lives or, in the case of corporations, where the company’s registered agent for service of process is located or where the company maintains a place of business. When dealing with individuals, the lawyer has no choice where to file the action – it must be where the defendant resides, but with corporate entities the lawyer can chose the best county within which to file the action if the company has more than one business location. Believe it or not, the location of the lawsuit can have a dramatic impact on the value of a case.
THE CAUSE OF ACTION IN A PERSONAL INJURY CASE
The complaint by law must state a cause of action against the defendant. It is my practice to include all possible causes of action against a defendant that are justified based on the evidence I have at the time of filing. I have found over the years that some causes of action that I thought were weak when I filed the lawsuit wind up being some of the strongest once I start obtaining evidence during the course of discovery in the case. If the causes of action prove to not be viable after the completion of discovery then I can dismiss them or the judge will grant summary judgment on them upon the defendant’s motion and a hearing. A cause of action is basically the reason for the lawsuit. For example, if someone rear-ended you, the cause of action would be negligence based on the appropriate statute governing following too closely along with a statement of the damages sustained as a result of the defendant’s negligence.
SERVING THE DEFENDANT
Once the complaint is filed with the clerk of court in the appropriate jurisdiction, the defendant must be served with the complaint. The sheriff’s or marshall’s office typically serves defendants but on occasion it is necessary to hire a private process server to track down a defendant who is avoiding service.
If you have been injured through the negligence of another person or entity, please give me a call at 404-474-2531 for a free and confidential consultation.