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Step 1 to Filing a Lawsuit

When a person is harmed, often the only sensible means by which he or she can be made whole is to initiate legal proceedings against the wrongdoer. Under most circumstances, legal proceedings begin once official documents are filed with the Court. There are also many forms of alternative dispute resolution ("ADR") such as mediation or arbitration. ADR is a great tool and should be used when possible, but some defendants will not take a party seriously until a lawsuit has been filed.

The first document that must be filed is known as the complaint. The injured party becomes known as the plaintiff. The complaint sets out the injured party's assertions, names liable parties as defendants, and lays out the factual and legal bases for the plaintiff's claim. Drafting the complaint must be done carefully, as it sets the tone for the legal proceedings to come and is often the sole means by which the court determines whether there is any merit to the plaintiff's case. In California courts, we have what is known as "fact pleading." Fact pleading, in contrast to notice pleading in federal courts, requires that you allege specific facts for each element of every cause of action in your complaint. That means that in a complaint alleging negligence, you cannot merely state "Person X was driving the car that hit my car and caused me to incur medical bills." You must clearly allege facts concerning the other driver's duty, the breach of that duty, how that breach was the cause in fact and the proximate cause of your injuries, and the manner in which those injuries caused you to sustain damages. Failure to comply with these requirements can get your case tossed out before you ever have an opportunity to present evidence on the merits.

In addition to filing the complaint, California courts require the Plaintiff to file a Summons and Civil Claim Coversheet. Both forms can typically be found on your county Court's website. These additional forms are incredibly important, because without all three forms being filed, the party you are opposing is not required to file a response (or, in other words, "Answer").

The Civil Claim Coversheet is a form that the courts use to classify your complaint and as a source of statistical data. It is a "check the box" form, and can be completed quickly and often without the need of assistance.

The Summons acts as an official notice to the parties you have named as defendants that they are being sued. Again, it is imperative that you know the court rules concerning providing notice to parties you are suing. While the Summons acts as an official notice, some types of suits require providing the parties you are suing additional time prior to filing the complaint. For example, in suits against "health care providers," the California Code of Civil Procedure may require you serve notice to the parties you are opposing a full 90 days before filing the complaint. Be sure you understand these rules before filing because there are consequences (known as "sanctions") that you may face for failing to provide proper notice, among other things. These other requirements may also affect when your statute of limitations expires.

Some plaintiffs may even be able to avoid the foregoing obstacles by bringing their claims through specially designated procedures. For example, it is very easy for an unpaid employee to file a claim with the Labor Commissioner and avoid the costs and requirements of an action in Superior Court. However, while bringing a claim with the Labor Commissioner may be easier in some actions, an aggrieved employee may also fail to identify all relevant causes of action. An employee who fails to consult an attorney may miss the opportunity to collect unpaid breaks and statutory penalties, for example.

The bottom line is that it's not always easy to get one's case before the court. Before starting a battle without an attorney, seek consultations and do due diligence to be sure you're in the proper court and following the proper procedures. If you think you have a claim, do not delay and beware of any pending statutes of limitation.

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