After an accident or injury, if you think someone else's negligence played a part in what happened, you might be thinking about filing a personal injury lawsuit. And the specifics of how and where you will be filing your case depend on the nature and extent of your losses. Who you're trying to sue and where the incident occurred may also be factors. Read on for the details. (Keep in mind that you might not need to file a lawsuit if your injury claim settles out of court, as most do.)
Small Claims Court
You first need to decide whether you are filing your injury claim in small claims court or regular civil court.
Small claims court is for personal injury lawsuits with a low amount of damages (meaning the amount of money you are asking for as compensation for your losses). Most states set a small claims limit of somewhere between $3,000 and $15,000 (for the rules where you live, see Nolo's 50-State Chart of Small Claims Court Dollar Limits).
If the amount you plan to ask for is below your state's threshold, you may want to consider small claims court, where cases tend to proceed faster and more informally compared with civil court. In fact, once the initial papers are filed, your case will probably be resolved after one court appearance.
If your damages are higher than the limit for small claims court, then you need to file your personal injury complaint (that's the document that starts the lawsuit) in the proper branch of your state's civil court system.
Jurisdiction and Venue. You need to file your complaint in a court that has the authority to preside over your case (jurisdiction) and is in the appropriate location (venue). While federal courts need federal jurisdiction to hear a case, almost any case can be filed in state court in terms of subject matter. Certainly a state civil court will have jurisdiction over a personal injury matter. Venue is typically the place where the defendant resides, and/or where the injury occurred.
Initial Documents. Your personal injury attorney will handle the preparation and filing of the initial documents in your personal injury lawsuit. If you don't have an attorney, go to the court’s website and locate the local rules regarding the forms of "pleadings." Look for the form of a "complaint," which is the initial filing, in which you state your case against the defendant.
Some websites may even have sample pleadings you can use to draft the complaint. Pay attention to the kind of information you need to include. For example, almost all local rules require a statement in the complaint asserting that the jurisdiction and venue are proper.
The website should also tell you what forms or documents you need to attach to your complaint. For example, sometimes when you sue a local government (New York City, for example) you are required to first file a Notice of Claim before you file the complaint. You must then attach the notice of claim to the complaint.
Filing the Complaint. Your attorney (or you) will take the complaint (and any necessary supporting documents) to the courthouse and file it with the clerk of the court.
Bring your checkbook or exact cash to pay the filing fee (typically between $200 and $300) because the courthouse might not accept credit cards. Get details on the filing fee through the court’s website or by calling the clerk of the court.
Service of Process. After you file a complaint, you need to "effectuate service" on the defendant. This simply means that you need to provide a copy of the papers you are filing to the defendant. It is very important that you properly serve the defendant, because the court can dismiss your case if you do not. You must then retain proof that you properly served the defendant, and file it with the court. Learn more about serving the defendant in a personal injury case.
While you are at the courthouse, you can ask the clerk of the court how to provide proper service of process. These rules vary by jurisdiction. The general rule is that someone who is 18 years of age or older and who is not a party to the lawsuit can serve the defendant. However, in some jurisdictions, you can serve the defendant via certified mail. Often, plaintiffs pay for a sheriff or a private investigator to effectuate service.
You have now initiated the litigation phase of your personal injury case. Now you wait for the defendant to file an Answer to your complaint, and for the court to either hold a conference and/or provide a schedule for your case (including the start of the discovery process).
If you've got questions about what to expect at any stage of your case, your attorney will have the answers. Learn more about how an attorney can make a difference in a personal injury case.